Animal Welfare (Kept Animals) Bill (First sitting)
(2 years, 5 months ago)
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The Chair
Before we begin, I have a couple of preliminary announcements. I remind hon. Members that they are expected to wear face coverings and to maintain distancing, as far as possible. This is in line with the current Government guidance and that of the House of Commons Commission. Please give one another and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. Tea and coffee are not allowed during sittings. Today, we will first consider the programme motion on the amendment paper and then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to debate in private about our questions before the oral evidence session. In view of the timetable available, I hope that we can deal with those matters formally, without debate. Nods all round—thank you very much. The programme motion, standing in the Minister’s name, was discussed yesterday by the Programming Sub-Committee for the Bill. Date Time Witness Tuesday 9 November Until no later than 10.30 am Royal Society for the Prevention of Cruelty to Animals; Dogs Trust Tuesday 9 November Until no later than 11.25 am Monkey World; The British and Irish Association of Zoos and Aquariums; Zoos Expert Committee Tuesday 9 November Until no later than 3.00 pm National Farmers’ Union; Compassion in World Farming; The National Police Chiefs Council Tuesday 9 November Until no later than 3.30 pm Canine and Feline Sector Group Tuesday 9 November Until no later than 4.00 pm Battersea Dogs and Cats Home Tuesday 9 November Until no later than 4.30 pm British Veterinary Association Tuesday 9 November Until no later than 5.00 pm Scottish Society for the Prevention of Cruelty to Animals Tuesday 9 November Until no later than 5.30 pm Farmers’ Union of Wales
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25am on Tuesday 9 November) meet—
(a) at 2.00 pm on Tuesday 9 November;
(b) at 9.25 am and 2.00 pm on Tuesday 16 November;
(c) at 11.30 am and 2.00 pm on Thursday 18 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedules 1 and 2; Clauses 2 to 5; Schedule 3; Clauses 6 to 19; Schedule 4; Clauses 20 to 47; Schedule 5; Clauses 48 to 53; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 18 November.—(Victoria Prentis.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Victoria Prentis.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Victoria Prentis.)
The Chair
The meeting in public is now resumed and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interests in connection with this Bill?
The Minister of State, Department for Environment, Food and Rural Affairs (Victoria Prentis)
I come from a farming family.
Dr Neil Hudson (Penrith and The Border) (Con)
I am a veterinary surgeon, a fellow of the Royal College of Veterinary Surgeons and a member of the British Equine Veterinary Association.
The Chair
All done; all declared.
We will now hear oral evidence from David Bowles, head of public affairs at the Royal Society for the Prevention of Cruelty to Animals, and from Paula Boyden, veterinary director of the Dogs Trust. Before calling the first Members to ask questions, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.30 am. Could the witnesses introduce themselves for the record?
Paula Boyden: I am Paula Boyden. I am veterinary director of Dogs Trust, the UK’s largest dog welfare organisation.
David Bowles: I am David Bowles, head of public affairs and campaigns at the RSPCA.
Victoria Prentis
Q
David Bowles: In general, we are very happy with the Bill. We are glad that the Government have brought the Bill forward. Obviously, it covers a number of main areas, such as sheep worrying, for example, which has not been reviewed for nearly 80 years. It covers the live export of animals, which is of course a Government manifesto commitment. We are very pleased to see that in there. It covers the licensing of and strengthens the rules on primate keeping, which has not been discussed under legislation for 11 years. The RSPCA is very happy with most of those issues. We believe that there can be improvements, as with any legislation. We are particularly concerned about the primate legislation. We would like to see a ban on keeping primates, rather than licensing, because we do not think that that will sort out the problem with private primate keeping and it will not sort out the animal welfare issues, which are primarily what the Bill is about.
On livestock worrying, we have a couple of tweaks to try to make enforcement better. On a broader point, we are concerned because Parliament, rightly, is passing legislation and looking to local authorities to enforce that legislation, whether that is complicated licensing legislation for primates or fairly simple legislation on transport rules, but the money has been cut. I think at some stage Parliament should be looking at how to enforce legislation, as well as passing more and more laws.
Paula Boyden: I will limit my comments to the areas around livestock worrying and illegal importation. Dogs Trust is broadly supportive of the proposals in the Bill. If we look first at importation, Dogs Trust has been very involved in the issue of puppy smuggling for a number of years. We are very supportive, in broad terms, of the raising of the minimum age of entry to six months. We would really like to see some science behind that. What I mean is a reintroduction of a rabies titre test and a wait period that is in line with the incubation of the disease. We think that is really quite important.
We very much welcome the reduction of the maximum point of gestation—when pregnant mums can be brought into the country. We would support a total ban on the commercial importation of pregnant mums. We see no reason for it to happen at all.
On the mutilation side of things, the provisions are again very welcome. We have seen an increase in dogs with mutilation, specifically docked tails and cropped ears, being imported. We would like to see a tweak to that, to ban not only the importation but the sale of such dogs; however, we would like a tightly worded exemption, so that as a rehoming organisation we could rehome those dogs. We have a similar situation with section 1 dogs, which we cannot rehome even if they are completely rehomeable dogs. That is really quite important.
Going back to puppy smuggling for a moment, we would really like to see a reduction in the maximum number of animals that can be in a vehicle from five to three. Sadly, we have to think of how the illegal importers work and what loopholes they would jump through. There is some science behind reducing it to three. Some work was done 10 years ago that showed that over 97% of dog owners have one, two or three pets. We have just undertaken a big dog survey with more than 240,000 respondents and we had exactly the same response—that over 97% of dog owners have one, two or three dogs—so there is good reason for that.
Like my colleague, I am broadly supportive of the livestock worrying provision, but we need some tweaks, particularly on dogs, and the definition of a dog at large in an enclosure or field. We feel that that needs tightening up to protect the livestock.
Victoria Prentis
Q
David Bowles: There are two issues here. The first is the welfare issue that you rightly raise. It goes back to the point about local authorities. If we need to get enforcement correct, we need to make the rules as simple as possible for the enforcement agents. This piece of legislation contains amendments to the Zoo Licensing Act 1981. Unlike in the Zoo Licensing Act, under which a trained zoo inspector goes in with the local authority inspector, on primates we just have the local authority inspector, who could be inspecting a Chinese takeaway restaurant in the morning and doing this in the afternoon. That is a problem, because you are dealing with the same animal. A marmoset or tamarin in a zoo is likely to have better enforcement and better auditing than a tamarin or marmoset with a private keeper, so it is about trying to make the rules really clear.
We also have a problem with the licensing because the RSPCA is worried that we will have a cliff edge. We do not know how many primates there are in England, but let us say that there are something like 3,000 to 5,000. The RSPCA has been getting an increasing number of calls on the inappropriate use of primates in captivity. Mostly that is because they are kept singly, they are kept in birdcages, they are not given the right ultraviolet lighting, so their bones disintegrate, or they are not given the right exercise. In other words, their welfare is not catered for in terms of the five welfare needs in the Animal Welfare Act 2006.
Under the Government’s plans there is a two-year period to bring in the licensing, and then a six-year period for the licence to operate. We worry that that is quite a long period for things to get out of control. We also worry that after two years primate keepers who have decided to give it up will suddenly abandon their primates. The RSPCA has proposed a ban on the private use of primates, but with grandfather rights, so you have a soft landing whereby if people have primates they are allowed to keep them until they die. Do not forget that marmosets and tamarins have a lifespan of about 10 to 15 years, so it will be a much softer landing.
The real concerns that we have on this are the enforcement issue and whether it is will improve the welfare of primates. Do not forget that we are 11 years on from the primate code that the Department for Environment, Food and Rural Affairs did in 2010. I think everyone now agrees and admits that that has not worked, because it is too complicated for local authorities, they do not understand what it is, and most of them do not even apply it. I do not want to have the same situation in 10 years’ time, discussing why a licensing regime for primates has not worked.
Victoria Prentis
Q
David Bowles: Sure. You have to go back to what we are trying to do with the improvements to the pet imports, both commercial and non-commercial. We are trying to cut down the illegal trade in puppies. Clearly, under covid we have seen a massive increase in the illegal and quasi-legal trade in puppies coming in, particularly from Romania, in response to the huge spike in demand that happened during covid, when new dog owners wanted exercise, mental health improvements and companionship. Those are all very understandable reasons, but obviously supply in the UK could not keep up with that demand, and we went abroad.
We know that puppy dealers have continued despite England’s third-party ban because it has so many loop- holes. Puppy dealers have continued—indeed, they have increased—the number of puppies that they are bringing in. If you look at 2020, there were some of the highest-ever levels of declared legal commercial imports. That has continued into 2021 despite puppy prices actually stabilising and maybe even going down since January. Something strange is happening: puppies are still coming in and being sold at service stations and lay-bys, and people are still making money. The RSPCA have found that some puppy dealers are earning £2.5 million to £3 million a year. These are not small amounts of money.
In response to your question, I will refer to Paula’s excellent statistics. We do not believe that reducing the limit from five to three would make any measurable difference to legal and responsible owners going either on holiday or to dog shows, or to legal importers bringing dogs in, but it will clamp down on puppy dealers who basically make money on the misery of puppies.
Victoria Prentis
Q
David Bowles: No. Dogs Trust has better statistics.
Victoria Prentis
Paula, would you like to come in on that?
Paula Boyden: We have not done any work on that specific issue, but I can repeat the statistics that we have. A paper published back in 2010 by Murray et al. looked at dog ownership within the UK. It found that more than 96% of dog owners have one, two or three dogs, so you are dealing with a minority. Dogs Trust has just undertaken a big dog survey, for which we surveyed over 240 dog owners. The outcome of that was that 97% of dog owners have one, two or three dogs. The numbers are incredibly low.
As David has mentioned, my concern with the comments that we are getting is whether what the ferry companies are seeing is a true reflection of dog ownership, or is it people bringing puppies in for sale to make a profit? It is not normal activity to go out and buy yourself five puppies. Those are the sorts of things that we are facing.
The other thing we have to bear in mind is just how quickly those illegal importers will change their tactics. During lockdown, we were not travelling, so we saw this enormous shift over to commercial movement. We have to think of the unintended consequences of whatever happens. Reducing the number of animals to three per vehicle is an appropriate way to go, because at the moment, you could just pitch up at the port, pick up a couple of foot passengers and bring in 15 dogs.
Victoria Prentis
Q
To move on to livestock worrying for a moment, how do you think we can best encourage dog owners to act responsibly around livestock?
Paula Boyden: Part of that will be legislation, but that is only one part of it. We know that the majority of livestock worrying is actually by dogs who are not with their owners and have escaped from a garden, so there is an element of irresponsible ownership there. Certainly, some of the proposals within the Bill—about tackling those irresponsible owners, depriving them of their dogs and banning them from keeping dogs—are appropriate.
However, that is only one part of it, and the proposals could certainly be tightened up. As someone who has worked for the Dogs Trust, but also as a vet and a dog owner, I see no reason why a dog should be off a lead in an enclosure or field where there are livestock. My feelings would be that the species that are listed at the moment is limited. Why would we limit that list of species?
There are a couple of other elements we need to work on. We need to work with the farming community. For example, signs on gates are fine, but if that sign is up 12 months of the year, then folk become conditioned to it because they know that, at times, there will not be livestock in the field. We also need good, accurate recording and reporting of livestock worrying from the police force perspective, because we do not know the true extent, and if we put these measures into place, how do we know what is good or not?
Part of it will absolutely be around owner education, and I have concerns with some of the current wording in the Bill, such as a dog not being deemed to be “at large” if it is in sight of the owner and the owner has a reasonable idea that they can get the dog back. In sight of the owner could be two fields away. For me, that is not under control. I am not suggesting that every time a dog goes into the country, it should be on a lead, but in an enclosure where there is livestock, then I think it should be taken as read that a dog should be on a lead.
Victoria Prentis
Q
Paula Boyden: Not within a specific enclosure. Obviously, we have things like common land, and that is a different element; that is where we do have to rely on dog owners to be vigilant and to ensure, as best they can, that there are no livestock there before they let their dog off the lead. However, if I was in a field of sheep, why would I have my dog off the lead? Even with the best-trained dog in the world, can you 100% say that that dog will not go if a lamb runs away?
It must be proportionate. We do not want to be the fun police; we do not want to stop dogs having off-lead exercise because it is really important for their enrichment, but it must be proportionate. Aside from the financial impact, a dog worrying livestock is traumatic for the farmer. No farmer will want to shoot a dog, but that is the sort of resolution that will happen in those sorts of situations. We want to avoid that, both for the farming community and for our dog owners too.
Daniel Zeichner (Cambridge) (Lab)
Q
Going to the RSPCA first, this is a slightly odd Bill, in the sense that it is a collection of bits and pieces. While being careful to remain within the scope of the Bill, it is perfectly possible to imagine that there are other things that could have been included. Could you reflect on that first? What would your priorities be if you were drawing up this Bill from scratch?
David Bowles: Yes, it is a bit of a potpourri, you are right, but the RSPCA is not against that, so long as we can get improvements to animal welfare. The Government came in with something like nine or 10 animal welfare commitments, and we are delighted that they are moving on those commitments, whether it is the sentience Bill, this Bill, or the Animals Abroad Bill.
The RSPCA are glad to see the issues that are in there, and the main issue for us is ensuring that it is done properly; you only get one chance at this. I have mentioned primates, and I totally agree with Paula on the livestock worrying side of things. We need to make it as easy as possible for enforcement people. Having statements like “at large” is not an easy thing for an enforcement person to go out with and then work out.
The Scottish Government also passed legislation on this only this year. Unfortunately, their Act is not that helpful for us, because it also does not define “at large”. I think that will be a problem for enforcement agents. We should always look to write legislation that will be easy to enforce. Unfortunately, this Parliament—not this particular Parliament, but Parliament in general—has a track record of passing legislation that maybe has not done what it was supposed to do.
Daniel Zeichner
Q
David Bowles: It is very likely. Let us say that 3,000 to 5,000 primates are being kept. Some people keep them because they are exotic and very easy to get—all you need to do is go on the internet, google “buy me a tamarin” and hand over between £1,500 and £2,000, and you can get one. They do not come with any instructions. If you wanted to buy a washing machine, the person selling it would tell you, “You need to put it on this cycle”, but tamarins do not come with instructions. Is it any wonder that people do not know that they need UV lighting and a specific diet, or that they are social primates and therefore need company? Putting one in a birdcage on its own will obviously not meet its welfare needs.
A variety of people buy primates. Although some people get them because they know how to keep them, I fear the vast majority do not know how to do that, and therefore we run into welfare problems. Unfortunately, because the RSPCA is only tipped off by the public, we see only the tip of the iceberg—we know only what the public tell us. As I said, we have unfortunately seen an increase in the number of complaints on primates being kept. In many instances, when we look into those people, the primates are not being kept properly and have welfare problems, and sometimes the person will have to be prosecuted for not keeping them according to their welfare needs.
Daniel Zeichner
Q
David Bowles: Let us be realistic. There is only a finite number of places where we could put primates that have been confiscated—whether it is Wild Futures or Monkey World, who you are hearing evidence from after me—and they are full. We have to try and manage that problem, which is why, as I said to the Minister earlier, we need a soft landing.
The RSPCA is really worried that if there are licence requirements coming in after two years, there will be a cliff edge: people will keep their primates until the end of the two-year period and then abandon them, whether by turning up to an RSPCA centre or letting them loose—who knows. That really worries us, and that is why we have recommended a ban on the use of primates, rather than a licensing system, but with grandfather rights and a soft landing; as those primates die, they are taken out of the system.
Unfortunately, the primate legislation as written means that if you get licensed, you are still allowed to trade and breed those primates, so you are not going to reduce the primate population. If we want to improve the population of primates kept by private owners, we need to reduce it. Unfortunately, the Bill does not do that. I go back to the issue that the person inspecting and licensing is not an expert; they will not know what they are looking at. If you get licensed by the local authority and your licence lasts for six years, you can then breed your primate and make money from it. Those animals can be sold for a couple of thousand pounds, which is not an insubstantial amount of money. That is the worry for us.
Daniel Zeichner
I will try not to hog the witnesses, but may I ask two more questions?
Daniel Zeichner
Q
Paula Boyden: I completely agree. It is a huge worry to think that a dog could potentially be held indefinitely while proceedings go forward. There has to be a means of either expediting those investigations—I appreciate that that is easier said than done; we know that there is huge pressure on the judicial service and police forces—or, if it is appropriate, doing what the Scottish Government have just done, which is introduce a means to be able to move case animals on and rehome them. We see that with livestock worrying; as you rightly mentioned, we see it with section 1 dogs as well. We really need to address it so that we do not have dogs languishing in kennels, because that is not welfare-friendly either.
The whole reason the Scottish Government have introduced this measure is because of delays with animal welfare prosecutions. There was a case I am aware of in Scotland where the dog was kept in kennels for four years, because the defendant would not sign the dog over. We are compromising their welfare. The risk is that, with cases potentially going up to Crown court, they could take even longer. We need to look at that and work out how we can manage it so that we are not keeping dogs incarcerated for great lengths of time.
Daniel Zeichner
Q
David Bowles: The “A” in RSPCA is animals. I do not differentiate between dogs and cats—they are as good as each other, and have as many welfare needs as each other. We have to recognise that there are different markets for dogs and cats. The market for dogs tends to be much more breed-specific; cats tend to be moggies. The way they are brought to market is very different. There is no big trade in cats. There is some evidence that there may be a trade that is starting to rise in breed-specific cats, and that could be mimicking what is happening to dogs, but because the market is very different, I do not think that if we crack down on dogs, people will go on to cats to make money. Frankly, it is a different market and there is a completely different system for how people get their cats. It is also a different system in terms of what breeds they are looking for compared with what dog breeds they are looking for.
Dr Hudson
Q
Can you give us some evidence to help us in terms of tightening up the Bill through putting in numbers, such as six months of age; reintroducing health checks; the rabies titre test; and specifying mutilations such as cropped ears? The hon. Member for Cambridge talked about declawed cats as well. Can you give us specific asks? For example, how heavily pregnant should it be—is it in the last 30% to 50% of gestation? What can we do to tighten up the Bill to make the provisions clearer to the outside world?
Paula Boyden: You mentioned the minimum age of entry. The proposal is six months. We would really like to see that science, as there is a potential to start looking at older dogs. The reason I say that is because of the disease risk from those dogs, which I appreciate is not part of the scope today. We have 12 years of serology data on the rabies vaccination and the rabies titre test from the 12 years prior to the change in 2012. We know that the animals that are least likely to respond to the rabies vaccination are young dogs—young, naive animals—those under a year of age, I would say, particularly with large breeds. The wait period would bring the time period in line with the incubation of the disease—most cases of rabies will present between three and 12 weeks post infection. That measure starts to give us a good framework, should we want to expand that at a later date.
On pregnancy, David mentioned third-party sales. It is not a bad piece of legislation, but I go back to a previous comment—we need to take a holistic view. This is all about the supply of and demand for dogs. Illegal importation is one side, but the domestic legislation around breeding and sale is also important. We have to tie them together. Since that legislation on third-party sales came in, we have seen a significant increase in pregnant mums coming in. This time of year, we are seeing a surge because they are all coming in for the Christmas market, because it completely circumvents the ban on third-party sales.
As a minimum, we ought to be reducing the gestation period to a maximum of 30% —a maximum of one half to two-thirds pregnant. We had originally said 50% of pregnancy, and the reason for that was that the New Zealand Animal Welfare Act 1999 protects unborn offspring at 50%, but having spoken to colleagues at the Department for Environment, Food and Rural Affairs, I understand that you can use ultrasound and the kidneys appear at about 42 days, so that could be quite a good indicator. The challenge with ageing at the moment is that it is very subjective. You are looking at the body weight, the size, of the puppy, but you are also looking at the eruption of the teeth—the adult teeth—which again is going to be variable. So having something that is a little bit more specific would be great, and if it were reduced to 42 days, it would mean that—well, certainly looking at the figures that we have, over 70% of the pregnant mums that were seized would have been illegally imported, compared with a smaller proportion. It is very, very difficult to say that a bitch is 50 days’ pregnant versus 54 days’ pregnant or whatever. The issue is having that specificity.
The journeys that these mums undertake are horrific—that is the only way I can describe them. They do not have enough room. There is no temperature regulation. Quite often, they are not fed, because if they are not fed, there is very little coming out the other end. They are given very little water. They have no breaks. That is not a way to treat a heavily pregnant animal of whatever species we are talking about. So the aim should be to reduce that and, as I mentioned, to absolutely ban the commercial importation of pregnant mums as well.
Sitting alongside that is the issue of mutilations. We very much support the ban on importing dogs that are mutilated—docked and cropped, and you mentioned cats that have been declawed. The one thing that does not happen at the moment is visual checks on importation. The checks are undertaken by the carriers, which we feel is wrong. That should actually be done by either an independent or a Government agency, so that there is no conflict there. But it should at least involve a visual check. We have demonstrated that on a number of occasions when we have actually imported a toy dog and nobody looked in the crate to see that it was a toy dog. We need that to see what the position is: “Does this actually match up? Does this animal actually need a physical examination?” We are not saying that we need to be hands on with every animal, but having a physical check is really quite critical in this respect.
In terms of mutilations, as I have mentioned, it is really important that we ban not only the importation but the sale of those dogs and cats so that they cannot be passed on, but we would very much welcome a very tight exemption so that, as a rehoming organisation, we could rehome them rather than the dogs being confined to our care for the rest of their lives. That is exactly what we have with section 1 dogs at the moment, because we cannot rehome them.
There is another thing sitting alongside this. We have spoken about the checks at the ports. I have two comments. One is that the risk with raising the minimum age of entry to six months is that we may see a shift from what we have at the moment, which is illegal importation, whereby the puppies are declared and have a passport but the information is wrong, to true smuggling, whereby they are hidden. We need to be mindful of that and look at how we can address it.
The other thing that we need alongside this, aside from the enforcement, is penalties, because the penalties just are not there. We have had approximately 2,000 puppies come into our care since we have been working with Animal and Plant Health Agency colleagues at Dover. Out of those, there have been three prosecutions and not one custodial sentence. If I use the analogy of cigarette smuggling, the maximum sentence there is seven years, whereas the maximum sentence for this is a year. I find it quite strange that if I were caught smuggling cigarettes, the last thing that would happen is that I would be given my cigarettes back, yet that is what has happened to the importers—they can claim their puppies back. One thing that we have seen through lockdown, because of the increased demand and increased prices, is more and more puppies being reclaimed through quarantine, because there is still a profit to be made. That is fundamentally wrong. At the moment, there is no deterrent to trying to circumvent whatever rules we put in place.
Dr Hudson
Q
Paula Boyden: It would certainly give clarity. I appreciate that there are benefits on either side. If the Bill goes through as it is, you can then bring something in under secondary legislation. Obviously, putting it in the Bill brings it in more quickly, but if secondary legislation allows us to make more changes, I think we have to weigh that up as to what is the most appropriate thing to do.
David Bowles: It is really important that the ban on importation, whether it applies to cropped dogs or puppies under the age of six months, applies to everything, because one lesson that we have learned from the puppy trade is that the dealers will make money out of anything; they will exploit loopholes. While I have total sympathy with people who are importing dogs from abroad that have had their ears cropped, it makes it really difficult for enforcement in the UK, because people then just say, “I’ve imported that dog with cropped ears”, rather than, “I’ve just done it myself last week”.
Olivia Blake (Sheffield, Hallam) (Lab)
Q
David Bowles: There are three points—and there is no easy answer to this. The RSPCA has been working with the all-party parliamentary group on animal welfare to try to consider how we can improve this situation.
The obvious one is money, but then you get told that all the time. Secondly, there is training. There are a number of very good training courses out there for local authority staff, but there are also some very poor training courses. I worry that a local authority employee would just go on a poor training course and have the certificate for it on their wall, but they will not have the same competence as somebody who has been on a course run by, say, the City of London.
Thirdly, where you are seeing things moving is local authorities, because of the budgetary issue, starting to pool resources. There are some very good examples of where local authorities have joined together. There is a very good one in Wales, but there are also a couple of good ones in England, where local authorities have decided to pool their resources and work together on the enforcement issue. I think that is the way forward.
Olivia Blake
Q
David Bowles: There are two problems. First, once you have got a licence, you have got a licence for six years. That is a long, long time. If you are talking about the lifespan of a marmoset, that is almost half its lifespan. So that is a very long time. The RSPCA would like to see that licence period reduced to a year.
Secondly, you are right, because this is all about expertise. When you are dealing with animals, it is not just expertise on the enforcement side that is needed; expertise on the vet side is also needed. Obviously, I defer to the very experienced vet at your table. There are very experienced wild animal vets out there, but they are not all over the place. The difficulty is that if you are presented with an animal that you have never been presented with before and you do not have experience of that animal, there could be a problem to work out whether its welfare needs are being met.
Olivia Blake
Q
David Bowles: I would be concerned, and not only because the present legislation allows the breeding of primates from a licensed keeper and the sale of primates. So, there is a commercial trade element. How will those primates get from one place to another? They have to be transported. When you are dealing with primates that at the moment are not being kept in appropriate conditions—you know, kept in a parrot cage, with no enrichment, in a very small space, on their own—I worry that that person will also not how to transport their primate adequately.
Olivia Blake
Q
Paula Boyden: At the border, first and foremost we need cover at the right times. We know that there is limited cover at weekends and in the small hours. The importers know that too, and that is quite often when animals are illegally imported, because there are limited checks.
As I mentioned, it is really important that we consider shifting the checks from the carriers to a Government agency. That should involve a visual check. The analogy that I have used many times is that at the moment it is a bit like you or me walking through an airport with a paper bag over our head, because there are no visual checks. That is why we have been able to import toy dogs into the country on a number of occasions without being challenged. We really need to address that. We will need individuals with a level of animal welfare knowledge, so that if there are concerns, they can flag them and arrange for a full physical check.
Alongside that, the physical resources at the ports are limited. For example, if somebody sees a dog that they think is pregnant, where will she be taken to allow her first, to rest, and secondly, to be examined? She cannot be left portside in the middle of June when it is 25°. We need to think about that side of things as well. It is not just Dover; the importers are very clever, and we need to look at other ports around Great Britain as well.
Olivia Blake
Q
Paula Boyden: The Bill, by mentioning mutilation, is highlighting that it is not appropriate. Speaking as a vet as well as for the Dogs Trust, I can think of no medical reason why you would mutilate a dog’s ears. It is the wrong bit of the ear that you would operate on. I understand that in other countries, there are breed standards in which the ears are cropped. I suggest considering a time-limited and very tight exemption for individuals who are caught now—who perhaps already have a dog that is mutilated, and are truly relocating—to allow them to bring their dogs into the country, but that would have to be incredibly tight, because any exemption is a potential loophole. That is something that we could think about. It should be time-limited. If the dog was mutilated before the legislation comes in, obviously within 10 to 12 years that exemption should not be necessary.
I would endorse the point that if these dogs and cats are imported into the country, it would allow us to rehome them responsibly, and give them a much better quality of house. We probably have some of the best kennelling in the world, but it is not the same as being in a home.
David Bowles: I concur with everything that Paula said, but we should not forget that tail docking is permitted in certain circumstances, if the vet believes that that dog will be used for certain activities, whereas dog mutilation has been prohibited for many years. There are different reasons why that is done; as Paula rightly says, there is no reason to mutilate a dog’s ear. It is done purely from vanity, and because some societies believe that some breeds look better like that. It is totally bizarre.
There are different issues there. The RSPCA has been asked by, for example, diplomats in other places who have a dog with a docked tail whether they can bring it back in. Under the legislation, the Secretary of State can allow certain exemptions, and I think that is right. Again, I emphasise that if we have a loophole for rescue organisations, the puppy dealers will jump straight through that door.
Paula Boyden: David mentions that a lot of the imports come from Romania at the moment. The cropping of ears is illegal in all EU member states, so there is no reason why there should be cropped dogs in any EU member state.
David Bowles: Except it is legal in Serbia, and those Romanian dogs are Serbian dogs.
The Chair
Three Members have caught my eye: Dr Luke Evans, Apsana Begum and James Daly. I am mindful of the time, so if anybody else wants to ask a question, could it be tight, and could questions be—well, as full as they need to be?
Dr Luke Evans (Bosworth) (Con)
Q
Paula Boyden: That is a really good question. It is quite difficult with brachycephalics. We are always treading a fine line, because we do not want to demonise these breeds. We have been working very hard, as has the RSPCA, on groups such as the Brachycephalic Working Group, with the Kennel Club and breeders to try to improve breed standards, so that we are not breeding for extremes. That is obviously a slow burn; it is not something that will happen overnight. It is quite difficult to predict the next trend. Certainly, when I was growing up, it was Rottweilers and Dobermanns. There is a big surge in hybrid crosses at the moment.
We have to get the message across that health matters over the looks of a dog. Again, it is very easy for us to say that—we have all the information about how one should go about getting a dog—but unfortunately we live in a demand society, where it is, “I want that, and I want it now.” That is part of it. As it is all about supply and demand, part of it is educating those who are looking to get a dog, so that they take their time and get the right dog, rather than getting one virtually at the click of a button. That is one of the challenges.
Dr Evans
Q
Paula Boyden: The importers are very good and adaptable, and we have seen this. We have been running the puppy pilot for six years. You will not be surprised to hear that the majority of dogs that have come through our care have been French bulldogs, bulldogs and pugs; dachshunds are now the leading breed. During lockdown, because so many people were getting dogs, we saw a bit more variety, but they are the key breeds that are coming through, so we will see that adaptability.
Kennel Club registrations of French bulldogs went up exponentially, but only a small proportion of them were registered. If we do a back-of-the-envelope calculation, there were 9 million dogs in the UK at the time, with an average lifespan of 12 years. I am not saying that supply must equal demand, but it will. We therefore need 750,000 dogs a year. The Kennel Club registers about a third of that, so where do the others come from? That goes back to my comment about being holistic. We do not have true traceability. You need a licence to breed a dog only if you breed three or more litters a year, so where people produce fewer than three litters, we do not know who or where they are. That favours illegal importers, because they can easily advertise online.
One of my key points is that we need to step back and take a holistic view of the supply and demand of dogs. The demand is important. The Department for Environment, Food and Rural Affairs is doing its “Petfished” campaign, which is fantastic, but we need to start joining these dots up a little bit more.
David Bowles: Certainly, importation has hugely satisfied the demand for cropped-ear dogs, and that loophole has led to an increase in dogs being cropped in the UK. With brachycephalics, it is really interesting. As you know, back in 2005, a handful of French bulldogs were being bred and registered each year, but now thousands are. Will that trend continue? Probably not. We are possibly seeing the start of a decrease in French bulldogs, but people will go on to something else.
You asked how to future-proof the legislation. At the moment, under the Animal Welfare Act, a breeder could theoretically be prosecuted for breeding a French bulldog that has not had its welfare needs cared for, because it cannot breathe. The difficulty is proving intent and where that started off. That is why there has not been any progress on that.
Apsana Begum (Poplar and Limehouse) (Lab)
Q
David Bowles: Yes. The RSPCA is glad that, under the Zoo Licensing Act 1981, conservation is in the Bill. The Bill will take that away and put it into the Secretary of State’s standards, but those standards are statutory. That is where we are very pleased that those standards will be statutory.
We have some concerns. There is a lot of power in the Secretary of State’s hands, because the Secretary of State can change those standards, possibly without consultation. We hope that if the Secretary of State is minded to change those standards, they would do a proper consultation and go out to everyone. But we are glad to see the standards becoming statutory.
We have slight concerns about the zoo standards, because different classifications of zoos seem to be being built up here. Obviously, the welfare needs of an animal are the same, whether it is in a big zoo, a small zoo or a medium-sized zoo. It is important that we focus through the lens of welfare, and try to improve the welfare of the animals, not worry about how big the zoo is.
Apsana Begum
Paula, did you want to come in on this?
Paula Boyden: No, I defer to David on that.
Apsana Begum
Q
David Bowles: Yes, there are issues around that. When does a farm that has a couple of exotic primates become a zoo? Again, we will come back to enforcement, but this is an issue. At least with zoo licensing, we have a zoo inspector who is an expert on zoos—but possibly not on the Animal Welfare Act 2006, and that is another area to be looked at, raising their standards of understanding of the Act—and the local authority inspector. It is all about trying to make it as clear as possible for them when a zoo is a zoo, and what the welfare needs of those animals are in that zoo. As I say, making those Secretary of State standards statutory is a good thing. Hopefully, that will give us the flexibility to improve them when our knowledge of the welfare needs of animals in zoos becomes greater.
Apsana Begum
Q
David Bowles: It is a real concern for the RSPCA. You just have to look at the Bill and what additional things it is putting on local authorities primarily, such as primate licensing or the puppy issues. Who is responsible for making sure that puppies are imported and sold properly and, if they are sold on the internet, that that licence requirement meets the legislation? Local authorities. For me, that is pushing a lot of stuff on to local authorities, but there is no extra monetary provision.
Paula Boyden: I completely agree. It is important that we provide the right support for local authorities and, equally, for colleagues at the borders who are undertaking the checks. They need the resources and the right sort of training. Comments were made about local authorities getting together and having a central animal welfare inspectorate to undertake the inspections, so that we have that expertise. In effect, that is what we have in the City of London. They are doing this day in, day out, so they have that level of expertise that we need for this.
James Daly (Bury North) (Con)
Q
David Bowles: You are probably aware that the RSPCA investigates probably about 85% of issues under the Animal Welfare Act. You are probably also aware that under our new strategy, we are in discussions with Government, the Attorney General’s Office and the police about the handing over of prosecutions to the statutory agencies. The primary reason for that is the changes in sentencing, which obviously we fought for and wanted. You will start to see a prison sentence of up to five years. We do not believe that it would be good for a non- governmental, non-statutory agency to be doing something where somebody could end up with up to five years in prison. A lot of the enforcements in this Bill are down to local authorities and down to the police.
The RSPCA will continue to investigate animal welfare issues—for instance, getting the calls on primates that are not being cared for properly. We will continue to enforce those. That is why we wanted a ban—because we want to make life easier not only for local authorities, but for us. I would love for the RSPCA not to have any calls on primates whatever, and for us not to spend the money investigating those cases and then trying to rehabilitate those primates. I do not believe, given how the Bill is written at the moment, that that will happen.
James Daly
Q
Paula Boyden: The devil is in the detail on that. One would hope, and what would be great to see there, is that within the seven days there is some sort of behavioural assessment of that dog—of whether it is appropriate to rehome it. It might involve an irresponsible owner who is not prepared to put the time and effort into training the dog, fencing their garden or whatever it takes. I would very much hope that there will be a little bit more detail about what happens within the seven days. I would certainly support the concept that we do not want dogs just languishing in kennels for protracted periods of time, but it has to be proportionate.
James Daly
Q
Paula Boyden: Again, it depends on the circumstances. If, for example, it is a repeat offender who clearly has not learned from the first time, I would hope that they would be encouraged to sign the dog over, because they are clearly not going to step up to the mark and do something about it. In that situation, rehoming might be the most appropriate thing for that dog. If it is a first offence, again, it depends on the circumstances. Anybody can make a mistake.
James Daly
Q
Paula Boyden: In those circumstances, there is the first stage—whether they need to take evidence and those sorts of things—so we assume that that is done. Obviously the person is innocent until proven guilty, so there is the question of whether it is appropriate for the dog to go back to that person, but again it will depend on the circumstances. If, for example, the dog has escaped from the garden, the sensible thing to do is to say, “Okay, we can get the dog back to you, but you’ve got to fence your garden first of all.” Then it depends on their commitment to doing that as to whether they have the dog back or it is deemed appropriate for the dog to be rehomed.
David Bowles: The RSPCA would share some of your concerns about some of these seizure issues. Paula has rightly talked about some of the kennelling issues with the police. I am not sure if you are aware, but the Scottish Government passed legislation this year—it has only been in place for two months—that allows the Scottish Society for the Prevention of Cruelty to Animals to get rid of a seized animal, whether it is a farm animal or a dog, after 21 days, rather than waiting for the court case to take its route. We would like to see something similar happen in England. If the person is found not guilty, then there is a compensation process under the Scottish legislation. That safeguards the welfare of the animal, because they are not languishing in kennels. Do not forget that even before covid, some cases took two or three years to get to court; under covid, 2020 was essentially written off, and we are seeing a huge backlog in court cases.
I worry that we have a lot of dogs, in particular, languishing in kennels, and their welfare needs are not being cared for. Once the court case is finished, it will be up to somebody, perhaps the Dogs Trust or the RSPCA, to try to rehabilitate the dog.
The Chair
Order. We have come to the end of the allocated time for the Committee to ask questions. I thank our witnesses: David Bowles, the head of public affairs for the Royal Society for the Prevention of Cruelty to Animals; and Paula Bowden, veterinary director for the Dogs Trust.
Examination of Witnesses
Dr Alison Cronin MBE, Dr Simon Girling and Dr Jo Judge gave evidence.
The Chair
We will now hear oral evidence from Dr Alison Cronin MBE, director of Monkey World; Dr Simon Girling, chair of the Zoos Expert Committee, who will appear virtually; and Dr Jo Judge, chief executive of the British and Irish Association of Zoos and Aquariums. For this session we have until 11.25 am. Could the witnesses please introduce themselves for the record?
Dr Cronin: Good morning. I am Dr Alison Cronin, director of Monkey World, an ape rescue centre in Dorset. I have been rescuing and rehabilitating primates from around the globe for the past 30 years.
Dr Girling: Hello. I am Dr Simon Girling. I am currently the head of veterinary services to the Royal Zoological Society of Scotland and chair of DEFRA’s Zoos Expert Committee. I have been a veterinary specialist in zoo and wildlife medicine for the last 18 years.
Dr Judge: Hello. I am Dr Jo Judge, the chief executive of the British and Irish Association of Zoos and Aquariums, which is the professional association for good zoos and aquariums in the UK and Ireland.
Victoria Prentis
Q
Dr Cronin: Yes. Over the years of rescuing and rehoming primates from the British pet trade, we have come across numerous individuals who have reached out to us to rehome the primates that they have kept as specialist keepers. I mean that in the true sense of the word. They are hobbyists who are dedicated to the care and welfare of their animals. They keep them in zoo-style environments with indoor and outdoor enclosures and access to professional veterinary care and social groupings. They feed them appropriate diets, stay up to date with the most current literature, and keep them as a specialist keeper, often contributing to conservation programmes that are zoo based.
I have received numerous calls from people of that type asking me to rehome their primates because they are getting elderly or see their circumstances changing, and want to do the correct thing by their primates. In those circumstances, I have often asked those individuals to keep their primates until the situation occurs where they feel that they can longer look after them, because I have so many that are being kept in bird cages, in solitary confinement and in people’s sitting rooms.
For me, it was a case of being practical and acknowledging that primates can be kept by private individuals to a reasonable standard of welfare if the appropriate guidelines and legislation are set out. The problem in existing legislation is that all marmosets, all species of tamarin, titi monkeys and squirrel monkeys—totalling 66 different species of primate—can be bought and sold over the counter or on social media like budgies or goldfish. No offence to budgies or goldfish, but those are animals with higher sentience, family groupings and greater physical and emotional needs, so greater concern needs to be given.
I am trying to be practical. I am trying to offer what I consider to be reasonable adjustments to current legislation and employing existing legislation, which is the strongest in the country right now that protects captive primates—the Zoo Licensing Act. I have just tried to offer a practical thing. I am not concerned about making a political statement about where the animals are kept; I am simply concerned about how they are kept. To me, the most important aspect is the health and welfare of these animals, not who is keeping them.
Victoria Prentis
Q
Dr Cronin: I think giving people the opportunity to make the circumstances correct is probably the right thing—again, I am trying to be practical. Because there is no registration system for said 66 different species of primate that can be kept, we do not know how many are out there right now. Some organisations have tried to put numbers on it, but they range from 1,000 to 5,000. Which is it? Actually, we don’t know. Where will all those animals go? Monkey World has taken in more than 120 primates from the British pet trade, in more than 25 years. I have taken in 15 just over the last two years.
The number of species and individuals is clearly increasing. In order to deal with the situation practically, if there are circumstances in which some of these shorter-lived primates—I am still talking about 12 to 15 years—can have their needs met in a captive situation, should these animals be allowed to live out their lives in what is deemed to be appropriate and reasonable circumstances, rather than just taking a categorical stance? Again, as I am on the frontline picking up the pieces, I am trying to offer a practical solution, when I know I already have over 100 primates on my waiting list.
Victoria Prentis
Q
Dr Cronin: Any form of this legislation will cause an increase in the numbers needing rehoming—that is just a fact. All organisations are agreed that something has to change so that the species with no registration system have some form of protection of their care and what they are provided. Everybody is agreed that something has to be done here, and we will do our best to accommodate and pick up the pieces.
Victoria Prentis
Q
Dr Cronin: I have just recently—within the last few weeks—been taken on to the zoos expert committee. I have come in at a later stage, but I am impressed with what has been proposed. Perhaps contrary to what was stated earlier, it seems to me that the standards are put across a level playing field, focused on bringing perhaps the smaller zoos that are not ticking all the boxes up to the same standard, regardless of size.
I think I am pleasantly surprised, as a user of the Zoo Licensing Act, to see a bit more focus on conservation and spelling out what that is. I could go through details over and over again. In particular, recently I was very dismayed to see so many of the larger zoos in the country immediately claim, after only a few weeks of closure, that they would potentially have to euthanise animals if they did not receive financial grants from the Government. Our organisation is not a large zoo in comparison to most. I am dedicated to the care and welfare of my animals, whether it is for my lifetime or for one year, and I think that it is essential that zoos operate with a budget that enables them to close for one year. That is an obligation that they should have to the endangered species that they are protecting, and one on which they seem to have fallen short up until now. Details such as that are in the proposed legislation.
Victoria Prentis
Q
Dr Judge: We would also support a licensing system. I agree with many of the points that Alison made about primates as pets. We think that you should be banned from keeping primates as pets in a domestic setting, but there are a number of responsible, registered—with BIAZA—keepers who keep their animals to a zoo standard, and their animal welfare is at the highest level. They play an important part in some breeding and conservation programmes. Although we fully agree that you should not be allowed to keep a lemur or marmoset in a birdcage in a living room, and would like to see that banned, we think that a well-resourced and effective licensing system is the way to go to enable the people who keep those animals at high welfare standards and contribute to conservation programmes to keep those animals. As Alison said, a complete ban would drive the trade underground and leave more animals in need of rehoming and more animals likely to be abandoned. We are very much in favour of banning them as pets but allowing a licensing system for responsible keepers.
Victoria Prentis
Q
Dr Girling: Yes, I genuinely do believe that that is the case. We currently have 12 members plus myself on the committee. The members cover a wide range of disciplines, from veterinary surgeons who have worked for many years and are recognised as specialists within the community to those who are working in a variety of zoo licensed premises—from larger zoos to smaller ones. We have members from academia, covering various areas of welfare, ethics and education, and we have local authority representation.
In addition, the standards have not been drafted purely by the committee. The committee has involved the zoo community, the British and Irish Association of Zoos and Aquariums. A number of members of BIAZA’s groups have contributed. These are just a few of them: the reptile and amphibian working group, terrestrial invertebrates, the native species research committees, veterinary working groups, elephant welfare groups and great apes welfare groups. We have widely consulted with the industry, from zoos to aquaria, and across a wide range and spectrum of different zoo licensed premises to ensure that the standards genuinely represent both what the industry wishes to drive forward and what we feel is important, which is improving conservation and welfare in zoo licensed premises.
I am very pleased to have new members such as Alison on board to bring their expertise and scrutiny and to bring different perspectives on these new standards, which I genuinely believe will improve welfare and conservation in zoo licensed premises in the UK.
Victoria Prentis
Q
Dr Girling: The conservation standards have not so much been absorbed but created within the standards. There was very little reference to conservation in the standards originally. Zoos have given many different examples over the years of contributing to conservation, including simply donating money to organisations that carry out conservation on their behalf or, in some cases, breeding species that are not on any sort of IUCN red list and saying that that is conservation.
We do not believe that, in a modern zoo, that actually represents conservation, so the Bill provides an opportunity for us to more clearly define what conservation is and how zoos can implement that, and to tailor it to ensure that it reflects the size of the zoological collection. We would expect some of the larger zoos not only to collaborate with conservation measures, but actively to lead them. It is an opportunity, which I believe the standards reflect, to significantly increase the definition of what conservation is and to improve it within zoo licensed premises.
Victoria Prentis
Q
Dr Girling: Absolutely. Hopefully, the consultation will be out before the end of the year. It will be a 12-week process targeted to the industry and other bodies, such as local authorities that have a stake in the zoo world and veterinary organisations involved in it. There will be discussion—quite rightly so—and there will be some areas that people will want more detail on, but I am confident that the standards as they stand represent a significant improvement in clarity, particularly on welfare and conservation.
That will help when we are talking about local authorities potentially being able to implement penalties, because it will give them more teeth to deal with zoos that are genuinely failing. I am confident that the consultation will be out in the next month or so, so that we can get the standards into force. We have to remember that this is the first major change to the standards for nearly 10 years, so a significant amount of change has occurred.
Dr Judge: May I come in on a couple of those points? ZEC has done a fantastic job and has involved different individuals from different BIAZA working groups in its consultation, but BIAZA itself has not been involved in the consultation and has not seen the majority of the standards yet. Those experts have been involved in developing the standards, but at the moment there is no requirement for any consultation when the standards are reviewed. We would like to see some assurance that when standards are reviewed, now and in future, there is wider consultation.
Victoria Prentis
Q
Dr Judge: Yes, we have, but it would be great to have a requirement set down somewhere that that will always happen when they are being developed rather than when they go out for wider consultation.
ZEC gives advice to the Government, and that advice is great, but there is no transparency about that at the moment. There is no requirement for it to publish its advice. We would like to see the advice around the standards brought into line with the new animal sentience committee, and it being given the ability to publish its advice, so there would be greater transparency, which would make the standards process more robust.
On moving conservation into the standards, we very much support the highest conservation requirements for zoos and aquariums. We believe that all modern zoos should provide impactful conservation, so we support that, but we would like assurances around consultation, transparency and accountability of the standards as they are reviewed.
Daniel Zeichner
Q
However, I listened very closely to your evidence, and you both said, “a number of”. A number can be anything from one to quite a few. I am not at all clear how many people we are talking about who are, in your words, in a position to keep primates to zoo standards. I would really welcome a stab from both of you at how many people we are actually talking about. That goes back to my question to the RSPCA: who are they? They are clearly not the kind of people we are trying to clamp down on, who are keeping primates in totally inappropriate conditions. How many can do it properly?
Dr Cronin: In our experience over the years, I can only comment on the numbers and proportions I have seen. Specialist keepers who have reached out to us or that I am aware of are probably one in 30. It is a very small fraternity of people—the personal hobbyists, if you will—who are prepared to spend the amount of money, time and effort needed to keep these animals properly. It is not straightforward; you have to invest a lot of time and effort into it and have back-up resources for going on holiday, or anything like that. So the number of specialist keepers is very small.
What has happened in the last decade is that social media has driven the trade in keeping exotic pets—primates in particular—in households to increase someone’s social media standing and the like. It has got out of control, and I think everybody agrees that that is the frontline that needs to be tackled first. Then, perhaps, additional legislation to deal with any outstanding issues surrounding those specialist keepers might be a follow-on. However, I think we all agree that the frontline triage is to stop the over-the-counter trade of primates being sold in birdcages to be kept in sitting rooms in solitary confinement. I do not think anybody has a problem with that being the primary focus.
Dr Judge: It is very difficult to put a number on it. We only have a handful of what we call our accredited associates, who are people who keep primates to that zoo standard in a private setting. There are also a number of sanctuaries that do not have a zoo licence because they do not allow visitors, which is what would tip them over into needing a zoo licence. At the moment, it is unclear how those sanctuaries would be affected by a ban. Presumably, with the licensing procedure, they would be able to carry on.
Those people are genuinely very passionate about their primates. The ones we deal with are very keen to be involved in conservation and breeding programmes; they are also people who will take animals that other people cannot properly house, and so on. They form a vital part of the safekeeping of primates in the UK. We do not know how many there are at the moment, but it is unlikely to be a massive number.
Dr Cronin: May I add one short comment? There is also an issue with pet shops and people taking advantage of loopholes in legislation by keeping primates in the pet shop, but not offering them for sale. Do those animals fall under the pet shop licence, or are they now in need of a dangerous wild animals licence, or the specialist keepers’ licence we are talking about? The whole issue surrounding pet shops needs to be tightened up. Also, as was mentioned earlier, there are all the farm parks that currently fall in between legislation. Are they zoos or not if they have a parrot and a marmoset? It is in those situations that animals are being neglected and falling short of legislation.
Daniel Zeichner
Q
Dr Judge: There has to be a reasonable period over which this is going to be implemented. If there are welfare issues, obviously, that should be paramount and there should be rehoming and the ability for that. The difficulty will be the capacity for rehoming. I know that Monkey World, for example, is at capacity—if not possibly over capacity—a lot of the time because of the rehoming that it does. While zoos will assist wherever they can, the actual capacity within zoos is restricted because it is not easy to take a pet monkey and put it into an established social group of primates kept in a zoo situation. Zoos have long-term management plans for all those animals, and they have a carrying capacity. The worst examples need to be rehomed as quickly as possible, but having a system whereby people are checked and then there is a longer period—I think it is two years at the moment—to get those into better premises could be useful. However, it all has to come down to the welfare issue.
Dr Cronin: There is a further twist in the tail there too and it falls back to the ZEC committee and the zoo’s licensing. A lot of the animals have come via captive-bred animals from zoos. When we are talking about breeding primates for so-called conservation purposes—and sometimes it is not actually so—so-called surplus animals are created that are then rehomed at various rescue centres or sanctuaries that may or may not be licensed, or they find themselves into the pet trade. That is where I suppose my worlds are colliding. There needs to be tighter legislation in the ZEC committee, in my opinion, to limit and control the breeding of species that are not conservation priorities and to ensure that those animals—that the zoos are obligated to care for what they breed. That is just a moral principle that we live by at Monkey World: anything that is born at the park I am obligated to care for for its lifetime, unless I can find a home of better quality than we provide already. That is something that needs to be fully embraced throughout the zoos up and down the country.
Dr Judge: In good, modern zoos, sending animals into the pet trade would never happen. It is against our sanctions. However, not all zoos are BIAZA zoos and the ones that do not adhere to those higher standards are the problem. It is those lower levels that we need to bring up to match the other standards. Within good zoos and aquariums, and the whole of BIAZA zoos and aquariums, breeding is very carefully planned and it can be done at a European level for conservation breeding, but they have to know what they are going to do with those animals when they breed them.
Daniel Zeichner
Q
Dr Girling: I genuinely believe that they will for a number of different reasons. The standards, as I am sure the Committee knows, have been altered to ensure that grey areas—ideas of best practice, so-called “shoulds” or “coulds”, suggestions that this is the best way to manage an animal—have been pretty much removed wholesale from the standards and replaced with “musts”. Consequently, it has inevitably resulted in an increase in standards throughout this document. I am confident that this new set of standards will improve the welfare of captive animals, including primates, and I certainly welcome the extension of welfare standards for primates from the zoo standards to all primates kept in captivity, just to echo what both Alison and Jo have said. Yes, I believe these standards will result in that and that may well result in some issues for some current zoo-licensed premises. They will have to improve their game or there may be the ultimate sanction of the local authority removing their licence if they do not come up to the new welfare standards.
Daniel Zeichner
Q
Dr Girling: It depends on the individual collection. They become the responsibility of the local authority in the first instance, because when the local authority removes the licence, it becomes responsible for the welfare and care of the animals. It then absolutely becomes a potential issue to rehome those animals to other zoological collections. As Alison has already acknowledged, many collections—zoos, sanctuaries and so on—are already at capacity.
We would expect that the standards will take some time to implement once they have been agreed, so there will be a lead-in period in which it would be plainly obvious to collections that the standards are improving. We sincerely hope that this will give everybody time to improve their game and to improve the welfare for their animals should it have fallen short of the new standards. Inevitably, yes, it may well result in animals needing to be rehomed, as Alison indicated.
Daniel Zeichner
I am not sure whether I feel more sorry for the animals or the local authorities. I will leave it at that.
The Chair
We have just under 25 minutes. I will tell the Committee which Members have caught my eye so that we make the best use of time: I have Luke Evans first, then Olivia Blake, James Grundy and Dr Neil Hudson.
Dr Evans
Q
To summarise, I am concerned about the public’s perception around welfare. It sounds natural and very obvious to say, “Let’s ban primates as pets.” What we are hearing from you guys is that, practically, that is very difficult because they are complex animals that may build relationships with a specific keeper. You cannot suddenly move them into another group very easily. Alison, you pulled a face there—that is what I am interested by, because I am coming at it as a lay person. If we choose a licensing system over an outright ban, how can the Government explain that to the public with the understanding and nuance in the message that you have just put forward?
Dr Cronin: I would be perfectly happy to accept a ban, but I am not, as I said before, trying to make a judgment on where the animals are kept—that is not my purpose. I am here to speak for those who do not have a voice: the monkeys and apes. I am concerned about how they are being kept. I am just trying to stay laser-focused, so to me, it does not matter whether they are kept at Monkey World, at Twycross zoo, or in somebody’s back garden.
Depending on who they are or how wealthy they are, somebody’s back garden might have higher standards than either Twycross zoo or Monkey World. I am trying to be practical in saying, “That can happen; that is realistic.” Why should a person be stopped, simply because they are a private individual, from doing a good job, potentially in both conservation and welfare? Should they become incorporated, and then would it be okay for them to keep those animals? I am trying to stay focused on the purpose and intent of what is being proposed, not on the moral principle of whether these animals should be kept in captivity.
On your comments about which animals become attached to people, I suggest to you that if they have become attached to people, they are perhaps not being cared for in an appropriate manner, because they should be living with others of their own kind and living appropriate lifestyles as marmosets, tamarins, squirrel monkeys or capuchin monkeys. We have not encountered primates that we have not been able to rehabilitate. We are known around the globe for taking some of the most difficult species, including great apes, and rehabilitating them into large, natural—well, natural when living in captivity—social groups. It is possible to do; it takes a lot of time, effort and money to do, and you have to be dedicated to that purpose. That is where the rescue work that we do at Monkey World is different from the average—I do not mean that in a derogatory way—zoo or wildlife park: we have a specific focus, and it can be done.
Dr Judge: I agree with Alison that it has to be welfare focused. The argument is that these people are keeping them to a very high standard of welfare, and that is what is important. As Alison says, it does not matter where that is, as long as their welfare is being adequately cared for.
Dr Evans
Q
Dr Evans
Human welfare is being looked after as well; that is good to see. Simon, I hope you got that question. The concern is that we need a good definition of conservation, but if it is too prescriptive we create a problem. What is your response to that as the ZEC?
Dr Girling: Thank you very much. It is a thorny issue, and I am confident that the conservation measures that are in the proposed standards that will go out for consultation are significantly increased in content and clarity. At the same time, they are not saying things like, “You need to donate £X to conservation in order to tick a box.” They focus more on the meaningful conservation measures that organisations can carry out. It is about enhancing and encouraging zoological collections—zoo-licensed premises—to engage in the process of research and conservation.
That does not necessarily mean that some of the smaller and less financially robust zoological collections have to release wildcats into England, or something of that nature. It is tailored to ensure that they are encouraged to collaborate, share data and information, and get involved in such things as local wildlife trust research and projects that are on their doorstep, all of which can be meaningful conservation. It is not about breeding animals that do not appear on the International Union for Conservation of Nature red lists, and calling that conservation. It is not about simply giving money to projects and saying, “That’s our conservation,” or “We’ve sold so many gifts at the gift shop, and we’re generating income for conservation.”
It is about being able to demonstrate to the inspectorate when it comes round for the zoo licence that they are actually engaging. Some of it is about outputs and publications. That does not necessarily have to mean peer-reviewed publications, but it is about communicating what they are doing to the wider public, contributing to organisations such as BIAZA, the European Association of Zoos and Aquaria, and wildlife trusts and so on in a meaningful way that demonstrates their engagement in conservation, rather than it just being a tick-box exercise. As you rightly say, that should be without saying, “No, no, no—you have to do this one very specific thing.” Hopefully, this will allow zoological collections—[Interruption.]
The Chair
Order. Simon, that is a very comprehensive answer. I just do not want anyone to have missed what you said. I did not realise that we were going to have an ongoing commentary about fire and leaving the building. Did everybody hear that answer, or would we like to wait a little while until the noise has stopped and hear Dr Simon again? I feel that we should give you the courtesy of being able to hear your comprehensive answer. We will hold off, and then, if it is fine with everybody, can I add this time on to the end? [Interruption.] I cannot. Okay, I just wanted to check.
Good—silence. Dr Simon, the floor is yours. We were all glued to what you had to say; it sounded comprehensive.
Dr Girling: The standards now have a specific section associated with conservation—[Interruption.]
The Chair
There you go—you heard that, Simon.
Dr Girling: That is excellent news. There is now a specific section within the standards that deals with conservation. That allows us to put more meat on the bone and to better explain what we mean by conservation: it is not about simply breeding animals that are not endangered and calling that conservation or about simply giving money, x pounds, to conservation. It is about being actively involved—rolling up your sleeves and getting involved with conservation.
Depending on the size of the zoo-licensed premises, that can be anything from reintroducing a species back into the wild, right the way through to actively engaging with universities, colleges and wildlife trusts by sharing data and getting staff involved in local conservation projects. It helps that there is a wide spectrum of activities that would qualify. It also means that it is not just about saying, “Well we exist and we generate income, and that is conservation because we have a zoo-licensed premises.”
I am hopeful that this will enhance conservation measures within zoological collections, make them easier to assess when the zoo inspectorate go out to grant licences and give confidence to the Committee that we are genuinely trying to drive up conservation standards.
Dr Evans
Q
Dr Girling: Yes, there are certainly many merits to traffic-light systems. I know that Jo and BIAZA have promoted a system similar to that, which will help the wider public understand conservation measures. We do not specifically address a traffic-light system within the conversation standards; we are trying to keep it to a series of “musts”, and then provide guidance on that.
An awful lot of very good conservation is done in zoos in the UK. However, no matter what is done, in a lot of cases we are not good at communicating about it to the wider public. Education is clearly one of the main planks of the zoo licensing system. Getting the message out there is a really important point: what are they doing, how are they doing it and what difference is it making? Is it having a measurable impact?
The Chair
We have only 10 minutes left and I am hoping to include a further three Members.
Dr Judge: To add to that, Simon is right that BIAZA are looking at setting up an accreditation system, whereby we would not just be looking at animal welfare, but at the conservation, education and research outputs of zoos. There would be some kind of system, whether a traffic-light or Ofsted system, that would be recognisable to the public. They would be able to tell from that system exactly what the zoos and aquariums were doing. Through that there would also be much more education and information coming from BIAZA about what our zoos were doing, and making it so that the public were much more aware.
Olivia Blake
Q
Dr Cronin: That varies; it depends on what species of primate you are talking about. For marmosets and tamarins, it can be anywhere from four months to six months, that kind of touch. The reproduction rate also needs to be considered. Marmosets and tamarins generally give birth to twins. It is sometimes triplets or even quadruplets, but the usual survival rate—in the wild, anyway—will be for twins.
The potential turnover of animals into the pet trade from breeders and dealers is high. As soon as infants are removed from a female who has given birth, she will immediately become receptive to the male and begin the process all over again, so you end up with females that are literally knackered from being used for breeding. It is quite tragic to see.
Olivia Blake
Q
Dr Cronin: We vasectomise everybody we get in. That is far less invasive than a castration, or a hysterectomy for a woman. There are permanent methods, but there are also temporary methods that can be used, such as implants. Pretty much the same available forms of human contraception can be achieved in non-human primates.
Olivia Blake
Probably not 100% then, based on humans?
Dr Cronin: No, we have had birth control accidents at our park using implants, intrauterine contraceptive coils and the pill. That does happen. There are permanent ways, if you were simply a hobbyist who did not want to breed animals yet wanted to keep them in a social setting.
Olivia Blake
Q
Dr Cronin: Sorry, it is my understanding—perhaps I have misread or misremembered—that there were suggested annual check-ups by the local authority within that six-year framework.
Olivia Blake
With the local authority, but not with a vet.
Dr Cronin: I thought it was with a vet, or a specialist.
Victoria Prentis
That is every two years, but for vets—hang on; let me find the right bit of the Bill.
Olivia Blake
Q
Dr Cronin: Being practical, that sounds untenable. The weight unloaded on local authorities has to be balanced. I am not sure that I see all this being dumped on the local authority on an annual basis. I think that every two years is acceptable. I would think that every six years is too long. I think that a fair medium has been struck.
Olivia Blake
Q
Dr Cronin: For a licence? With interim checks, that probably is acceptable—these are rather long-lived animals —so long as those biannual checks occur and circumstances have not changed. Part of the evidence we supplied is that there should be an amendment to the Bill that if amendments to a licence are requested, such as an increase in numbers or species kept or a change or deviation, that would immediately obligate another local authority check before the licence was amended.
James Grundy
Previous witnesses this morning suggested that putting the burden of inspection on local authorities might create too great a burden. The example used was that perhaps a chap looking at the tandoori place in the morning would be inspecting this in the afternoon.
Dr Cronin: Correct.
James Grundy
Q
Dr Cronin: Potentially, at the outset, it will be rather large. If all the individuals who currently keep primates in what I would call a bird cage or a parrot cage in their house step forward to register their animals, I suspect that what would happen would not be a whole lot different from what currently happens. We will see the effect of people not continuing to buy the animals as the legislation has duration, with the trade being limited and the grandfather clause.
The people who keep animals in bird cages in their sitting room may not be aware of the new legislation. Will they then step forward to announce, “I’ve got a marmoset in a bird cage in my sitting room” to the local authority? I suspect that will not happen. In the end, they will only be turned over by the friends and neighbours who report them. Then it will be up to the local authority, and that is sort of where we are right now.
I am sort of wondering whether the changes in law will actually have a dramatic effect on the animals being taken in or local authorities being overstretched. It is impossible to say how it will play out—you would need a crystal ball. However, I suspect that it will not be a radical change from where we are. My immediate hope is that the trade in selling these animals for commercial exploitation will stop; over time, I hope that all this will wind down, so that all we have left are primates being kept in reasonable conditions in facilities that are up to zoo standards throughout the country. That would be the goal and target for me.
James Grundy
Q
Dr Judge: Yes, absolutely.
Dr Cronin: Yes, absolutely. I have witnessed it. It is rare that I turn down people’s request to rehome their primates if I am able to take them in. However, in some circumstances I have seen private individuals who keep their animals in extremely good conditions; that is why they have approached us—because either their circumstances are going to change or they are getting elderly, and before their health deteriorates they want to ensure the health and welfare of the monkeys they keep.
The individuals are so dedicated to those animals that, at that point, I have to say, “Look, we have to do frontline triage with marmosets in bird cages. Perhaps you should keep them. When the time comes, I assure you personally that I will look after your monkeys.” Inevitably, those dedicated keepers want their animals sorted and they want it right now. I have seen good, dedicated keepers.
James Grundy
Q
Dr Cronin: Correct, but those specialist keepers are very few and far between. My take-home thought for everybody here today is about the head of the snake: the unscrupulous breeders and dealers who do know how to keep the animals correctly and are capable of breeding them at a high rate, but who are simply churning them out in order to maximise their profits. That needs to stop now.
There is also a huge human toll that is not often discussed. Well-meaning members of the British public are being taken advantage of. A lot of the animals we rescue at Monkey World come to us from people who did not realise. Ignorance is no excuse but, at the same time, it is currently legal to buy a monkey over the internet or from a local pet shop. They are told it is just fine to take it home individually in a bird cage—
The Chair
Order. We have come to the end of the time allocated for the Committee to ask questions and, indeed, for this morning’s sittings. I thank our witnesses on behalf of the Committee: a big thank you to Dr Alison Cronin MBE, director of Monkey World; to Dr Simon Girling, chair of the Zoos Expert Committee; and to Dr Jo Judge, chief executive of the British and Irish Association of Zoos and Aquariums. The Committee will meet again at two o’clock this afternoon in the Boothroyd room to continue taking oral evidence.
Judicial Review and Courts Bill (Fifth sitting)
Tuesday 9th November 2021
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
The Committee divided: - Ayes: 10 / Noes: 7 - Question accordingly agreed to.
The Chair
Welcome to this morning’s sitting. I ask that everyone continue to respect the advice and rules on covid restrictions, and remind Members to submit their notes to Hansard and to turn off any devices or put them on silent.
Clause 2
Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
Amendment proposed (4 November): 43, in clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—
(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;
(b) that party was not of full age or capacity;
(c) the appeal before the First-tier Tribunal was not an in-country appeal;
(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;
(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or
(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”—(Andy Slaughter.)
This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—
“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—
(i) bad faith, or
(ii) fundamental breach of the principles of natural justice.”
This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.
Amendment 44, in clause 2, page 4, line 8, at end insert—
“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;
an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;
a party is ‘not of full age or capacity’ if that party is—
(a) a child, or
(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)
an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;
‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;
‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;
‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”
This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is a great pleasure to serve under your chairmanship, Mr Rosindell. I wish everyone a good morning and look forward to another thorough day’s examination of this important Bill.
Amendments 43 and 44 seek to reduce the scope of the ouster clause by introducing numerous exemptions. Clause 2 is carefully constructed and consistent, and identifies the kinds of errors the court could make and deals with each separately. The upper tribunal will not be reviewable on errors of law but will be where it has made a true jurisdictional error or where there is evidence of bad faith or a fundamental breach of the principles of natural justice. That is so we can deal with the inefficiency in the current system while providing adequate safeguards.
The exemptions outlined in the amendment would completely undermine the Government’s objective of tackling those inefficiencies, as a large number of cases would continue to proceed to the High Court on grounds of error of law without any good reason. I understand that some of the circumstances outlined in the amendment are particularly difficult for the claimant. However, we must trust the upper tribunal to take appropriate and proper decisions on all permission-to-appeal applications. Where there are particular sensitivities, we can be confident that the upper tribunal will have considered those in reaching its decision.
The very low percentage of Cart judicial reviews that actually result in a successful outcome for the claimant—as we have discussed, the figure is about 3.4%—illustrates precisely that point. There is no good reason to treat the sorts of cases that come before the upper tribunal—the majority of which are immigration cases—differently from any other sort of dispute that comes before our courts and tribunals by granting them a third bite at the permission-to-appeal cherry, as we have famously described it, which is what the Cart JR system currently does. The amendments would undermine the consistency of the treatment of appeal decisions by the upper tribunal, making it the final court in some cases but not others, simply because of certain factors relating to the claimant rather than to the nature of the error concerned. Our approach is consistent and justified, and properly empowers the upper tribunal to get on with its important business.
Amendment 42 aims to widen the exception to the ouster clause, which relates to bad faith and fundamental breach of natural justice. It proposes including decisions made by the first-tier tribunal as well as the decision of the upper tribunal. I consider the amendment unnecessary. I am sure hon. Members will agree that judges of the upper tribunal are entirely capable of identifying the sort of blatant and serious errors that constitute bad faith or a fundamental breach of natural justice.
The upper tribunal can be trusted to uphold the rule of law, and the drafting in the Bill sets out with sufficient clarity the exceptional conditions in which the upper tribunal should be subject to judicial review—namely, where it has breached the fundamental principles of natural justice or acted in bad faith. In any case, one would imagine that the upper tribunal knowingly upholding bad faith on the part of the first-tier tribunal would act in breach of the fundamental principles of natural justice. Therefore, including a further provision in the Bill outlining a situation that, in my view, is extremely unlikely to occur, is unnecessary. I urge the hon. Member for Hammersmith to withdraw the amendment.
Andy Slaughter (Hammersmith) (Lab)
It is a pleasure to see you in the Chair again, Mr Rosindell, for another sitting to consider this important Bill. I will respond briefly.
The Minister correctly said that the aim of the amendments is to reduce the scope of the ouster clause. That is exactly right, because we do not believe there are adequate safeguards. Without giving away the plot, we will come shortly to the clause stand part debate and our preferred option is to leave the clause out altogether. The amendments are our attempt to say that if the ouster clause were appropriate in the new circumstances, which we do not concede, it should not have such limited exemptions.
The Minister said that the amendment would defeat the Government’s purpose by increasing the number of cases that would still be subject to judicial review. It is my submission that that is not the right way to look at it. It is the justice of the case and the consequences for claimants that we should be looking at. To repeat what I said last Thursday, those consequences are often matters of life and death and severe. In addition, the use of judicial review in Cart cases is already heavily constrained. We have focused on the relatively small amount of money that Cart judicial reviews cost—relative in terms of overall judicial budgets—this would be a part of that sum.
The Government should not dismiss this issue. At the very least, they should think about the extent of the ouster clause. That is the purpose of this debate and I do not believe they have thought sufficiently about it. We are, however, coming to the clause stand part debate, in which members of the Committee will be able to express ourselves rather more clearly and fully. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.
Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.
The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.
Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that
“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
He agreed that it is time to end this type of review because of its inefficiencies.
The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said that
“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Does the Minister think it is a little strange that while Opposition Members argue for those immigration cases to maintain having three bites at the cherry, they do not make the same argument for other cases with potentially higher success rate?
James Cartlidge
I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.
Tom Hunt (Ipswich) (Con)
Given that the Opposition have spent so much time opposing all the steps the Government have taken to fit capacity into the system, does the Minister agree that there is a certain irony that they had planned to hold an Opposition day debate yesterday on how to sort out the court backlog?
James Cartlidge
My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.
Anne McLaughlin (Glasgow North East) (SNP)
If that is the case, and if the Minister is so concerned about the court backlog, does that mean that he will not support the Nationality and Borders Bill, which attempts to criminalise asylum seekers simply for coming to this country because they could not find safe and legal routes, at an estimated cost of an extra £400,000 per year, clogging up the court system even further?
James Cartlidge
It is a fair point, but the hon. Lady and my colleagues may be interested to know another statistic that we have discovered: the average time that these cases take from coming to court to reaching a conclusion is 88 days. That means that hundreds of cases are taking three months to be heard in the High Court. On that basis, we would not bring in new measures to toughen up sentencing on, for example, serious sexual offenders. If we did that, more people would potentially end up being found guilty of those crimes and going to prison for longer, which costs. That is precisely why we are taking measures to free up capacity. For example, in a later part of the Bill we will be remitting more cases from the Crown court to the magistrates court, because it is in the Crown court that those serious crimes will be heard.
James Cartlidge
I will take a second bite at the cherry from the hon. Lady.
Anne McLaughlin
I thank the Minister for that second bite. I know he was not deliberately conflating serious sexual offenders with asylum seekers, but I really want to make that distinction. We are talking about people fleeing for their lives from terrible situations, and in the same sentence he compares them to serious sexual offenders. Does he agree that there is no conflation there?
James Cartlidge
Of course. That is not the point I was making. To be absolutely clear, the point I was making is that we still have to deal with serious acts of violence and crime, whatever the crime may take place. If we do that, our actions may put more pressure on the courts, but I think our constituents would support that. Moreover, if someone comes to the tribunal system seeking immigration to this country, they will have two bites at the cherry—to use that phrase again—which is a consistent position.
James Cartlidge
The hon. Lady shakes her head. [Interruption.] She wants a third bite of the cherry. Well, I am going to ration them a bit, because there are oral questions soon. An inordinate amount of judicial resource is being used to review decisions of broadly equivalent judges who, importantly, are correct in refusing permission to appeal in the overwhelming majority of cases. However, if we take this away in immigration cases, there are still two bites at the cherry, which is consistent with article 13 of the European convention on human rights.
James Cartlidge
I will be very generous and offer the hon. Lady a third bite.
Anne McLaughlin
I have just served on the Nationality and Borders Bill Committee. I did not get a break between that and this Committee—in fact, last week the two clashed—so I know that what the Minister says is not the case. If asylum seekers arrive here by irregular means—in other words, if they come by boat because they cannot find safe and legal routes—they will not have an opportunity to apply for asylum, because they face offshoring and prosecutions. They will end up in the criminal court system before they even have an opportunity to go through the system that the Minister is discussing.
James Cartlidge
Let us be clear and differentiate here. If someone seeks to enter this country illegally, the rule of law and the law of the land apply. We have to deal with them through the courts, as is absolutely right. We think that judicial review is, in effect, an exceptional privilege used in immigration and asylum cases. Some 95% of these are immigration cases, and there are some other types of cases using Cart JR. We think that this is excessive. What we do not think is excessive to use the courts to use the rule of law and all the things that apply in a democracy to ensure that we have effective border controls which, after all, our constituents support. That means that we have the rule of law both at home and for people trying to emigrate to this country, either legally or illegally. The latter is something where our constituents feel particularly strongly that we must be strong in sending a signal that this country is not a light touch for people seeking to enter illegally, even if eventually their asylum claim is found to be legitimate. For those cases, we are generous, and we have shown that in what we have done in the Afghan settlement scheme.
Turning to the method by which are trying to ensure that there is a more proportionate use of resources, the Government understand that there are concerns about the use of these clauses, but we believe that clause 2 as drafted is clear in its intent. Indeed, the independent review of administrative law acknowledged that the use of an ouster clause to deal with a specific issue could be justified. Its nuanced approach emphasised that if there was sufficient justification, and the ouster clause was not too broad or general in scope, it would not undermine the rule of law.
As drafted, clause 2 addresses the previous concerns of the courts in six ways. First, as shown by proposed new section 11A(4)(a), the ouster clause applies only where there is a valid application for permission to appeal from the first-tier tribunal. This is not an extensive ousting of the upper tribunal—it removes only a specific route of review. Secondly, turning to new section 11A(4)(b), the ouster clause does not apply where there is true jurisdictional error. If it were the case that an invalid application was made or there was an application on a criminal law matter, and the court decided to adjudicate it, that would be outside its jurisdiction and open to judicial review. If the upper tribunal was not properly constituted—for instance, if a disqualified judge presided over a hearing—such a hearing would be outside the jurisdiction of the court. The ouster applies where the upper tribunal is functioning as normal, with proper composition of the panel.
Thirdly, two additional exceptions have been added to the clause, to further improve the “safety valve” aspect of the ouster clause. Once again, the Government are not trying to completely oust the upper tribunal’s jurisdiction; rather, they are concerned with ousting the ability to review errors of fact and law made by the upper tribunal. This does not include instances where the upper tribunal has acted in bad faith, or where there has been a fundamental breach of the principles of natural justice, such as if the court decided to hear only one side of the case. These issues concern an abuse of the powers of the tribunal, and we do not see merit in ousting such abuses from judicial review.
Fourthly, the clause is limited only to courts. The wording of proposed new section 11A(2) is explicit that the measure involves removing the jurisdiction of courts from other courts—not executive bodies. The impression given by some of the commentary on the Bill since its publication has been that the clause is being used to remove executive power in general from the court’s oversight, but that is not the case. It is stopping one court reviewing another court of broadly equal standing.
Fifthly, as a notable point and in defence of the integrity of the Union, the ouster clause does not apply to challenges of decisions from the first-tier tribunal for which jurisdiction was or could have been granted by an Act of the Scottish Parliament or of the Northern Ireland Assembly. The clause is clear and explicit. The Government hope that the effect of drafting the above exceptions, and explicitly stating what is and is not covered by the ouster clause, will be to demonstrate that it is possible to develop such a clause that will be upheld by the courts and that it may well improve practice in future circumstances where such clauses are considered. This is a well-considered ouster clause that is designed to meet a clear policy objective and includes appropriate safety valves to prevent injustice. I hope that the Committee will support clause 2.
Tom Hunt
It is a pleasure to serve under your chairmanship, Mr Rosindell. It is certainly the first time; I would have remembered otherwise. I will talk about clause 2 in a general sense. As I mentioned to my hon. Friend the Minister in my intervention, for which I was very grateful, there is a certain irony here. We have spent so much time debating the measures that the Government have proposed to free up capacity in the court system, but they are being opposed by the Labour party, which then has the cheek to hold an Opposition day debate on Monday purely about the court backlog.
The refugees who are arriving here illegally are potential refugees. Many will not be; many will be economic migrants who are fleeing from France, a safe European country. The 2011 Supreme Court decision that led to Cart JR in relation to these cases was a retrograde step, and in some respects has given judicial review a bad name. Judicial review is an important part of the justice system, but the influence of Cart JR has been negative and has given judicial review, which is very important for our justice system and our democracy, a bad name.
There is a debate about whether the success rate for Cart JR cases is 0.6%, 3% or 5%. A success rate of 5% is still extremely low, compared with 40% or 50% for other types of judicial review. We must bear that in mind. We hear that there are 750 such cases a year, at a cost of £400,000. I raised the issue of the financial cost last week, and this was belittled by a witness, who said that the cost was
“the same amount that DCMS spent on its art collection in 2019-20.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 52, Q75.]
Of course, that is not the key point. The key point is the wider pressure on the court system and on the time of our High Court judges. It is very clear that the pressure that Cart JR puts on the system makes it more difficult for our court system to get back on its feet after the impact of the pandemic. I am pleased with the practical steps that are being taken in other areas of the Bill to help with that.
This issue of the first, second and third bites of the cherry is interesting. I have not heard any practical reasons why immigration cases should be treated so differently from other cases by having a third bite of the cherry. We hear that, if there is one successful case, and even if only 2% or 3% of cases are successful, that is enough to justify Cart JR. If that is the only argument, why do we not have a fourth bite of the cherry, or a fifth? Can we say with certainty that, if we put the 97% of cases that are unsuccessful in the High Court to the Supreme Court, there will not be one or two that are successful? If one or two were successful, would that justify endless bites of the cherry? At some point, a balance must be struck. There is a limited amount of resources and significant pressure on the system. It is not unreasonable for the elected Government to make a determination about what is and is not reasonable. Even if the success rate is 5%, allowing endless bites of the cherry is not reasonable. It is not a justifiable pressure on the wider system.
Last Thursday, we also heard from the shadow Minister about many instances in which an individual had been successful in a Cart JR case in the High Court. Of course, such cases would have contributed to the 3% or 5%, but we would be here for about a week if we were to hear about each individual case that formed the 95%, or the 97%. Let us be absolutely clear: many of those individuals would be having a pernicious influence and a negative impact on our country—they would be illegal immigrants—and, frankly, the sooner we can get them out of the country, the better.
Anne McLaughlin
The hon. Member is talking about the sooner we can get rid of these people out of the country. One of the people I spoke about on Second Reading was a Venezuelan man who fled after state actors murdered a friend of his. He knew that he was in danger because he had witnessed that. The first-tier tribunal and the upper tribunal did not interpret his evidence correctly, according to the subsequent judge, after the Venezuelan man successfully got a judicial review. He is surely one of those people whom the hon. Member is talking about—the sooner that we can get rid of these people—because he would lose the right to have his appeal judicially reviewed, if the Member gets his way.
Tom Hunt
The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.
I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.
Sir John Hayes (South Holland and The Deepings) (Con)
I am inspired to speak to this part in our consideration, partly by the Minister’s eloquent explanation of why the amendments are undesirable, partly by the wise words of my hon. Friend the Member for Ipswich on how the traditional system is in a way being besmirched by the gaming of it, in particular in immigration cases, and partly because of the delight of serving under your chairmanship, Mr Rosindell, which I have not done often, but am particularly pleased to do, under the watchful gaze of one of my political heroes, Joe Chamberlain, who began life as a radical and ended it as a member of a Tory Government, understanding, as you and I do, that liberalism is the triumph of frenzied licence over dutiful obligation. It is because of obligation and, in the spirit of Chamberlain, our patriotic respect for our constitution that we must resist the amendments.
To hear some critics of the Bill, one might think that the Cart was embedded in the settlement between Parliament and the courts, and yet it is a modern thing. As you know, Mr Rosindell, it is the product of a decision by the Supreme Court as recently as 2011, when it declared that the High Court could judicially review decisions of the upper tribunal to refuse permission to appeal from the first-tier tribunal, whereas previously it was held that it could not.
At the heart of our consideration of the Bill is a fundamental difference about the character of our belief in the character of judicial review, but also a difference in our understanding of the separation of powers. We saw that in our evidence sessions. We had evidence from academics, notably Professor Ekins who, by the way, authored the report by Policy Exchange—which I commend for its excellent work on this subject. He was very clear that some of the recent decisions by the Supreme Court and other parts of the court system have challenged the supremacy of Parliament.
We also heard from Aidan O’Neill, who said he was a constitutional lawyer, and I understand he is—quite a notable one, from what I read. He said that this was about mutual respect, but mutuality is not the basis of our constitutional settlement. The roles of Parliament and the courts are distinct—the separation of powers; the clue is in the name. Of course there is a relationship between them, because this place makes laws and the courts oversee laws, but judge-made law is not consistent with our constitutional settlement and some of the perverse decisions of the courts in recent years have led, in the words of Professor Ekins, to parliamentary sovereignty being openly questioned. He said:
“Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think”.—[Official Report, Judicial Review and Courts Public Bill Committee,2 November 2021; c15, Q9.]
The defence of the rule of law is not a valid one, as the Attorney General made clear in her speech on these matters very recently.
The issue before us in respect of these amendments is clear. The judgment that was made in 2011 opened a new avenue of judicial review and those Cart judicial review cases have mushroomed since. This is particularly true for immigration cases, as my hon. Friend the Member for Ipswich said a few moments ago—not exclusively so, as the Minister pointed out, but largely. This has to be changed. Given that a previous Labour Government tried to tighten the requirements for judicial review, it is surprising that the current Opposition do not understand that this is a return to a stable and steady position—a normal position—that enshrines judicial review as an important part of the way in which citizens can acquire justice, but does not allow it to become what it has become, a means for people to perpetuate political debates that they have lost earlier. This is using the courts to—I never thought we would be speaking so much about fruit during the course of our deliberations, but to use the word that has been used several times before—have many bites of the cherry. We ought perhaps to think about another fruit, just for the sake of variety, but I suppose cherries will do for the sake of argument.
As I pointed out when we last met, the Opposition were going to have a debate yesterday on the court backlog. The amendments seem to me to have the effect of doing the very opposite and do not address the issue of the court backlog. We know that a very small number of cases that are brought under Cart judicial review—something like 3%—are successful, and yet there were around 750 per year between 2026 and 2019. We have many cases being brought on a wing and a prayer, with neither the wing flying nor the prayer being answered in terms of the result of the case. There is a pressing need, just on those practical terms, to reform judicial review in this respect.
I say to the Minister—not provocatively, but I hope helpfully—that I think the Bill can go much further. I think it is a very modest reform of judicial review. I refer him again to Professor Ekins’s work. There is a good argument for changing the rules of evidence, for example, which would tighten the system considerably. There is a good case for dealing with the effects of the Adams case, the Miller case and the privacy case, which he will know had profound effects on judicial review and on the balance between Parliament and the courts.
Janet Daby (Lewisham East) (Lab)
I am also inspired to speak in this debate. I think that I would be doing my constituents an injustice if I were not to say something on this really important issue. I give credit to the hon. Member for Glasgow North East, who tried to give more of a human approach, through the experience of the person who went through the court proceedings to do with Venezuela. I appreciate her attempt to do that, although it was not very well received by Government Members.
I just want to share a few things. I do not come from a legal background, but I do come from a social care background, and I have worked with refugees and asylum seekers in the past. People may or may not be aware of some of the really abusive situations that they face when they are travelling from their country of origin and try to find passage over here. Some of the stories that I am aware of involving young people and children, although the clause is not necessarily about children, are absolutely horrific. People are raped, abused and threatened at gunpoint to be silent. It is very disturbing to hear of those cases. When there is not enough evidence, or evidence is not being received properly, during the first court hearing and the second, but it is found, during the third hearing, that actually there is a clearer understanding and a clarity that then would go on to save somebody from suffering a level of persecution if they were returned to their country of origin, I think that is worth while.
I do not want to take up too much time, but I will briefly talk about just one case that I happened to work on when I was working as a social worker. It involved a person who was seeking political asylum at the time. He went through the process three times and eventually received status in this country. But on one occasion, his parent was very ill and on the brink of death, so he decided to go back to his country of origin. I am not going to name names or countries, because of confidentiality, but he went back to that country to try to see his mother. Then his wife frantically came to me to say, “He hasn’t returned home on his flight. He’s been missing for two days. Can you help?” At the time, I did not know what to do to help, but I contacted the embassy, and the embassy contacted the country, and found out this person’s identity and that he had been put in prison. It was almost as if the keys had been thrown away because they realised who he was. After the contact that I was able to make with the Government, they were able to put him on a flight back, because somebody showed some care in his situation.
My point is that we are talking about human beings and human lives. We are talking about saving people from persecution and death if they return to certain countries of origin. I am talking specifically about asylum seekers and people who need refuge in our country.
Andy Slaughter
We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.
As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?
Sir John Hayes
I do not want to prolong the hon. Gentleman’s peroration except to say that a third argument has been made, which relates to the integrity of judicial review per se. When only 3% of Cart cases are successful—20-odd cases out of 750—the very integrity of the system is undermined. Notwithstanding the backlog, surely he accepts that it is important that we reform something that is clearly going badly wrong.
Andy Slaughter
I do not accept that as a separate point. I understand that that has been the thrust of the right hon. Gentleman’s argument in Committee, but it is a criticism of his own Government rather than my approach. In my view, the Bill does not go far enough and does not approach judicial review in sufficiently robust or constitutional terms; rather, it is taking what we have described as a tit-for-tat approach. However, we are where we are with the Bill. That is a matter that he must take up with his own side. I will talk about the 5%, but I do not want to say any more about the backlog. It is an incredibly important issue, and I look forward to the debate on that resuming, but frankly it is irrelevant to our proceedings, and it is a stretch to introduce it.
On the matter of cherries, this has been characterised as simply an immigration matter. Most Cart judicial reviews are of immigration cases; that is important in terms of the consequences, but it is not solely about those cases. If one listened to what Government Back Benchers say, one would think it was solely about that, but as has been said several times, Cart was not an immigration case. This form of judicial review applies to upper tribunal cases, regardless of whether they are immigration cases. That needs to be on the record.
I was looking yesterday at written evidence from Justice on the cherry point—other Members may have seen it as well. It is brief so I will read it, because Justice puts in better than I could, and I think we probably need to take this head on. Justice says:
“Cart JRs are not about having a ‘third bite at the cherry.’ There is also an important wider public interest at stake. Cart JRs prevent the UT from becoming insulated from review, by ensuring that there is a means by which errors of law, which could have very significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Philips said, Cart JRs ‘guard against the risk that errors of law of real significance slip through the system’. UT judges are specialists in their field, however as Lady Hale recognised ‘no-one is infallible’. Cart JRs mitigate against the risk of erroneous or outmoded constructions being perpetuated within the tribunals system, with the UT continuing to follow erroneous precedent that itself, or a higher court has set.
The Cart JR cases that succeed will involve either (i) an important point of principle or practice, which would not otherwise be considered; or (ii) some other compelling reason, such as a wholesale collapse of fair procedure. These are the second-tier appeals conditions that were set as a threshold by the Supreme Court in Cart, and are now in the Civil Procedure Rules, for a Cart JR to be considered. The Supreme Court sought to address the most significant injustices while making efficient use of judicial resources. It was in fact the Supreme Court’s intention that few Cart JRs would be successful, but those that were would be the most egregious and important cases with serious errors of law.
Due to the second-tier appeals conditions, Cart JRs involve only the most serious errors of law. If a Cart JR is successful, it will mean that the applicant had not been given a lawful ‘proper first bite of the cherry’ in appealing a decision to the FTT, and the UT had unlawfully refused permission to appeal the unlawfulness. Cart JRs also do not in any way determine the claimant’s substantive case, or whether the claimant should be allowed permission to appeal—this is for the UT to decide following a successful Cart JR.
It is also wrong and, as described by Lady Hale in Cart, a ‘constitutional solecism’ that since Parliament designated the UT as a ‘superior court of record’ Parliament excluded any possibility of judicial review. The decision in Cart did not involve the interpretation of any statutory provision that could be described as an ouster clause, and statutorily designating a body as a superior court of record, as Laws L.J. pointed out at first instance, ‘says nothing on its face about judicial review’.”
That is all I want to say about cherries this morning, but I think we have been led into the orchard erroneously on that point.
The Minister quoted one or two Supreme Court members. I could quote a number in aid of my submissions, but I will limit myself to three different types of advocate who would not always support Cart cases specifically. One, whom I think I mentioned on Second Reading, is Lord Neuberger, a former President of the Supreme Court. He said only a couple of weeks ago that it is “always worth remembering” that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected. Ouster clauses, for example, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity.”
One of our witnesses was Professor Feldman, who gave a balanced account of his view of the Bill. He said during our evidence session on this matter that
“I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 25, Q24.]
Dr Johnson
The hon. Gentleman is making an argument about the importance of being able to review almost any decision. He said he accepts that judicial review in normal circumstances is looking at Government administrative decisions, and that is what it was set up for, yet in this particular case—the Cart case—it is reviewing a judicial decision. Will the hon. Gentleman therefore clarify whether it is his position and that of the Opposition that all judicial decisions made at this level should be subject to review, and that this third bite of the cherry, as the Minister has said, should not be open only to those undertaking immigration cases? As his hon. Friend the Member for Lewisham East said, those are serious and important cases, but other cases going through the courts also have serious and profound consequences for those taking part in them. Should everybody be able to review a decision that has been made at High Court level?
Andy Slaughter
The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.
A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.
Andy Slaughter
It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.
Dr Johnson
I am sorry if my question was not clear, but I have not really had an answer to it. Do the Opposition believe that all judicial decisions made at upper tribunal or superior court of record level should be subject to review in the way that the Cart JR provides specifically for immigration cases?
Andy Slaughter
We have explored at some length the effect of Cart as it operates at the moment, but I have not heard from the Government how they think those cases should be addressed, other than saying, “Well, every system has its losers and we will just have to live with the consequences of that,” either because of the financial cost or for some other reason.
Dr Johnson
Again, I am sorry if I am not explaining my question clearly, but does the hon. Gentleman believe that all people who take a case to court, perhaps with profound consequences on their lives, should have that third bite of the cherry? Is he arguing for all decisions to have judicial review, or does he believe that cases in the Cart—that is to say immigration cases—should specifically get an extra third bite that others do not get?
Andy Slaughter
I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.
I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:
“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”
That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that
“even a single case can have wide ramifications.”
If that applies to judicial review more widely, why does it not also apply in Cart cases?
Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.
Anne McLaughlin
I am told it will be a great pleasure to serve under your chairmanship, Mr Rosindell. I am sure it will be.
As I often say in this place, we never know who is watching. We probably do not have a huge audience watching this debate, and I understand it is going out in audio only at the moment, unless that has been fixed. However, some people will be listening or watching, so it is worth repeating exactly what is happening here so that lay people understand. I will briefly go over it.
If an individual feels that a public body—for example, their local NHS, the Department for Work and Pensions or the Home Office—has failed to correctly apply the law in making a decision about their case, they can appeal to the first-tier tribunal. If that finds against them and the individual believes that there is an error of law, perhaps by overlooking vital evidence or by misinterpreting the rules, they can apply to the first-tier tribunal for permission to appeal at the upper tribunal. If the upper tribunal refuses to appeal the decision, right now that person can ask to have the decision judicially reviewed.
All sorts of criteria have to be met. Someone does not simply say, “Can I have a judicial review?” and get it, but right now they can at least apply. What we are discussing today—clause 2—would take that right away from them. There has been talk about how many bites of the cherry someone can have, but only the tribunal system is having the independent oversight of judicial review removed. All other judicial reviews will continue, and the Minister said that in his speech. I am not sure that is something to be proud of, because we know that the tribunal system often deals with the least powerful in our society. That is who we are removing the access and the right to justice from.
As the Law Society of Scotland has pointed out, decisions on appeal at the tribunal are often taken by a single judge based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, nor to answer any questions that the judge might have. In the last week, we have heard all sorts of arguments about how the powerful—in other words, MPs—have to have more opportunities to plead their case. In terms of the Committee on Standards, a huge number of Conservative MPs talked about how the case was decided on the paperwork, which it was not—that is not quite true—but a lot of the evidence was considered in writing alone, which is somehow wrong when it comes to powerful MPs, but right when it comes to people in vulnerable positions. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.
The Immigration Law Practitioners Association collated 57 real-life case studies of people who had accessed the right that they will no longer have once this legislation is passed. The case studies included a child who applied to remain in the UK in order to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions whereby, if deported—we have talked about the man who witnessed a murder in Venezuela—their lives would be at risk or they would be separated from their family. If we go ahead with this measure, that is what would happen, and I do not know how anybody here in Committee can justify that.
It is important to explain for anybody not au fait with the legal system that we have different layers of decision making because sometimes decision makers get it wrong. I will give a couple of examples. I sat on the Committee that considered the Nationality and Borders Bill, so I was not here for the first sitting of this Committee. I was astonished to read that a member of this Committee asked why any judge’s decision should be questioned. A fundamental part of our justice system is that we accept that decision makers, including judges, get it wrong and have to be questioned.
The justification given by the Government for ousting Cart and Eba in Scotland is the high volume of applications versus the real number of successful outcomes. Let us look at that. The evidence to support that position was so flawed that the Office for Statistics Regulation launched an investigation. It found that the real success rate was at least 15 times higher than the Government’s figures. Why did they use those figures in the first place? Was it because they knew that if people understood just how many people it does affect, they might have less sympathy with their position?
Anne McLaughlin
I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.
Dr Johnson
It is therefore the hon. Lady’s position that the Government should give legal passage to those people who are arriving on boats from France—perhaps put on ferries for them? Does she recognise that that could lead to increased trafficking of people and increased suffering?
Anne McLaughlin
No. I still think that is an absolute nonsense. If we are going to have a debate about the Nationality and Borders Bill and the wickedness of pushing back not boats, but people—human beings are on those boats—I am happy to do so, but I do not imagine the hon. Lady will be happy with that. I am happy to have a conversation about that afterwards.
Angela Crawley (Lanark and Hamilton East) (SNP)
Is it not the case that, because there are no safe and legal routes available, the Government have made that passage practically impossible, and the associated member states, which also have a responsibility, have made it impossible? Those individuals are falling into the hands of criminal gangs—traffickers—and are being exploited. Therefore, safe passage is not possible for many people.
Anne McLaughlin
I absolutely agree with that. I am happy to talk about this because I do not think the Government have a leg to stand on when it comes to how they plan to treat the most vulnerable human beings on our planet.
That takes me to some examples of why the Cart JR is so important. I talked about the case of the Venezuelan man, and a Conservative Member said that it was sad but true that some people would fall through the net. We are not talking about somebody appealing a parking fine; we are talking about somebody who is alive today because he was able to access—
Anne McLaughlin
Absolutely. I would love to hear what the hon. Gentleman has to say.
Anne McLaughlin
The “third bite of the cherry” is not about whether the case is correct or the person’s claim is correct; it is about whether they got the correct process and mechanics in the first place. If they were not able to access justice in the first place, they should have the right to have that heard by a judge.
Anne McLaughlin
I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.
There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.
Sir John Hayes
I wonder whether the hon. Lady will provide some clarity about the parameters within which she believes the system should work. Presumably, she cannot be saying that there should be unlimited rights of appeal. She cannot be saying that there should be no structure around how people can access courts and use them. She cannot be saying that every person who arrives in Britain should be able to appeal again and again. There must be some limits, some parameters, some rules and some grounds. What are they?
Anne McLaughlin
We have them already. I am perfectly happy with what is in place. It is the right hon. Gentleman’s Government who seek to change that and take away people’s access to justice. It is not me who is trying to change it. I am the one trying to stop them changing it and taking away people’s rights.
I will tell the Committee about another case. The claimant was in a relationship with a British citizen, and they had two children who were also British citizens, but the claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review—the thing that Government Members want to take away from these people—the decision was overturned. The upper tribunal allowed the appeal under article 8. However, without the Cart judicial review, the family would have been separated.
The final person I want to talk about, from the Public Law Project’s evidence, is a Sri Lankan national who feared persecution, partly because of his involvement in diaspora activities in the UK. His perception was that he would be viewed as someone who was seeking to destabilise the integrity of Sri Lanka. It was argued that the first-tier tribunal judge had acted procedurally unfairly in refusing to consider all the evidence, including valuable video evidence, when deciding that the appellant was not actively involved in diaspora activities as claimed. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but was finally granted on appeal, where it was considered that there were legal and compelling reasons for granting permission. An order was made quashing the upper tribunal refusing permission.
Sir John Hayes
I wonder whether the hon. Lady will give me one more bite of the cherry.
Anne McLaughlin
I will finish this story. Before the hearing in the upper tribunal, the Home Office conceded the appeal and accepted that the appellant was a refugee. If Cart had not been an option, that man would have faced deportation and almost certain persecution. Having lived and worked in Sri Lanka, and having kept in touch with many people there and many Sri Lankans living here, I can tell Members that that man almost certainly would not still be here had he been deported and denied access to Cart judicial review—the thing the right hon. Gentleman wants to take away. I will let him come in and explain that.
Sir John Hayes
But 97% of these cases fail, and they fail on the grounds that the hon. Lady says she supports—she supports the existing system, as she made clear in her answer to my previous intervention. Given that she supports the existing system, and 97% of these cases fail, does she not recognise that something is going badly wrong?
When cases fail in respect of immigration, does she support the rapid deportation of people who have been through the system, sometimes more than once, and failed and had their case found to be wanting? Does she want those people who are found to be acting illegally to be deported, as we all do?
Sir John Hayes
I said 97% of cases fail. When they fail, those people have exhausted the legal avenues that the hon. Lady says she supports—the current system, criteria and means by which people can make their case. When immigration cases fail, does she support the speedy deportation of those people?
Anne McLaughlin
On the issue of 97% of the cases failing, if the decision-making processes at the beginning of the claim were better, we would not have all those people going through the tribunal system. I absolutely support improving the capacity and decision-making process in the Home Office.
Angela Crawley
Is it not the case that those figures have been widely disputed? We have covered that intensively already. The Government’s parameters for success and failure are defined fairly arbitrarily in comparison with what we would understand or define as a successful testing principle, which is what judicial review is designed for.
Anne McLaughlin
I thank my hon. Friend for reminding me of that. I foolishly accepted the 97%, knowing it was not correct.
Paula Barker
The hon. Lady has been generous with her time. Does she agree that, as we heard in the evidence session, Cart reviews are not just about immigration? They are also about sexual justice cases. It is starting to feel as if the Government wish to have a further bite of the cherry in their hostile immigration policy.
Anne McLaughlin
That is an excellent intervention and I absolutely agree. Interestingly, my notes state that we are not just talking about immigration. I agree about the hostile environment; it is vile. If I am right in saying that most of them could not care less about migrants, let us talk about cases of access to vital benefits for people with disabilities and others facing destitution and homelessness, who will be affected. Those are people who have been left without a last line of defence. This legislation will affect all four chambers of the upper tribunal. Individuals will no longer be able to apply to the High Court.
Dr Johnson
The hon. Lady said that she believes that we do not care about migrants. I find that deeply offensive. As a paediatrician I have worked with children who have been alone—unaccompanied asylum seekers—examining them and looking at their injuries and scars. We do care very much about migrants and reducing people trafficking—this evil, barbaric trading of people, which we need to stop.
Anne McLaughlin
What I find offensive is the way in which asylum seekers are treated right now, and the much more awful way that they will be treated if the Nationality and Borders Bill goes through in its current form—or, actually, in any form. I find that utterly offensive. I understand that on a one-to-one basis people will show kindness to individuals, but the hon. Lady is still going to vote for a system that will criminalise people who are desperate enough that they have no choice but to flee from their country, including people in Afghanistan right now whom we have not given safe and legal routes. They cannot wait any longer; they will die if they wait any longer. The hon. Lady will vote to criminalise them, or to offshore them, or to separate them from their families.
I am really pleased and absolutely certain that, one to one, the hon. Lady shows nothing but kindness and respect for people. However, that is very different from voting for a policy that does all the things that I just listed.
Angela Crawley
I am grateful to the hon. Member for Sleaford and North Hykeham for also making that point. Is not the essence of the problem, therefore, that the criminality that should be targeted is that of the traffickers and those who are exploiting these vulnerable individuals, rather than the individuals themselves—individuals who, through no fault of their own, when they arrive in the UK, are in an absolutely destitute situation? To criminalise them for using an illegal channel does not get to the root of the problem, which the hon. Lady has already correctly identified.
Anne McLaughlin
I could not have put it better myself. I completely agree with that. I do want to go on to look at other people who will be affected. Let us imagine that the Members opposite are not that bothered about asylum seekers and migrants, but they do care about people with disabilities. Currently, 16% of the working-age population live with a disability. That rises to 45% of adults over the state pension age.
Nobody can guarantee that they will not, one day, have a disability—that they will not, one day, be absolutely dependent on being able to access disability benefits. If for some reason they were to be wrongly denied those benefits, as happens far too often, and appeal to the courts, they need to have the right to question the decision-making process because, as we have heard, decision makers do not always get it right.
Sir John Hayes
On a point of fact, could the hon. Lady tell us how many Cart cases are brought by disabled people?
Anne McLaughlin
Strangely enough, no I cannot. Can the right hon. Gentleman tell us?
Sir John Hayes
The hon. Lady must know that over 90% of Cart cases are immigration cases, although it is possible that some of those people might themselves be disabled. If she then takes the fewer than 10% of cases that are not immigration cases, a small minority of those will be of the kind she is describing. Of course, the hon. Lady is right that when disabled people are disadvantaged and need recourse to law, they should have it. However, the idea that she is promulgating—that somehow the Government are acting in a way that is disadvantageous to significant numbers of disabled people in the way she is suggesting—is not only inaccurate but irresponsible.
Anne McLaughlin
I do not think I suggested that there were huge numbers of cases of people with disabilities. What I said was that there are huge numbers of people with disabilities and huge numbers of people who could have disabilities in the future, and that they will be denied access to justice if they do not get justice first time around. That happens so often.
Anne McLaughlin
I am very pleased to hear that the right hon. Member has given up. Feel free to intervene again. [Interruption.] I will say that, from a sedentary position, he says that there are none so blind as those who will not see.
Anne McLaughlin
The right hon. Member can quote scripture at me all he likes. If we are going to talk about scripture, then we are going to talk about Christianity, which is surely about compassion. To say that it does not matter that this will affect people with disabilities because there are not that many of them who will be affected is just wrong.
Anne McLaughlin
That is what he implied. Anyway, I wanted to move on to ouster clauses.
Ouster clauses put decisions beyond the reach of the court. Despite the Government backing down after an outcry on proposals to include them in the Bill, they said:
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
I agree with Amnesty’s proposition that the Government are explicitly using it as a test run for ouster clauses, and that it is a blatant and disturbing attempt to get rid of judicial oversight in other policy areas. As it also says, “The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and separation of powers.”
I suggest that we heed the warning of the Law Society of England and Wales that, “It is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy.” They do not say anywhere, but there are not many of them, so let us not worry about it.
Judicial review may be inconvenient for the Government at times, but that is no justification for its removal. The implications of the Bill could be far-reaching, given the legal framework and its potential future use. The Bingham Centre for the Rule of Law, which I hope Members respect, said, “it is reasonable to say that ouster clauses are at odds with the rule of law.”
Finally, last week, in reference to the now former MP about whom the Standards Committee produced a report—I think all Members know what I am talking about—the Leader of the House said:
“It is not for me to judge him—others have done that—but was the process a fair one?”—[Official Report, 3 November 2021; Vol. 702, c. 938.]
That is the crux of judicial review. If the Government believe that we do not need access to Cart judicial review, did those who used it to win and get justice—such as the Venezuelan man fleeing for his life, the child requiring lifesaving treatment or the family who could finally be together—not require it, or were they not worth it?
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairmanship, Mr Rosindell. I will speak briefly about Brexit, which, as we know, happened a couple of years ago. After speaking to many constituents, one of the main reasons that they voted for Brexit was immigration and control of the borders. It is still a huge topic when I go door to door every week to speak to my constituents. Having got Brexit done, the Government said that they would do everything in their power to take control of the borders. This important Bill is part of that. Opposition Members should remember that, although they oppose the Bill, many of their voters agree with it. It is important to get it through.
Anne McLaughlin
Does the hon. Member think that politicians and political parties should slavishly follow public opinion, or that they should propose their own values and principles, based on human rights, and seek to take people with them and change public opinion?
Nick Fletcher
The Government, and we as MPs, should listen to our electorate. I believe the Government are doing that. I understand that it is an extremely complicated subject, but I am afraid that when my voters see planes full of convicted criminals get last-minute reprieves and are taken off those planes, they lose faith in this place, in Opposition Members and in the entire system. It costs hundreds of thousands of pounds, too. I understand and appreciate that people sometimes fall foul of the system, but we have heard that it happens between 0.22% and 5% of the time—that is what we have heard. We must look after our borders and keep them under control.
Paula Barker
We are on day three of going through the Bill. Even at day three, what I have heard from the Government Benches is purely about immigration. What would the hon. Member say to constituents of his who are looking to go through a judicial review by the court from a social justice aspect? I have heard nothing from the Government Benches regarding that—it is all about immigration and having voted to get out of Europe.
Nick Fletcher
I think the hon. Lady has heard from the Government Benches many, many times that the majority of these cases are about immigration. When Labour Members have been asked how many bites at the cherry they want, we have never once had an answer. Would she like to come back on that? I assume not.
Andy Slaughter
If the hon. Gentleman is seeking an intervention, I will provide him with one. The hon. Member for Ipswich said that Cart cases were a small number of cases, and even if they were justifiable, mistakes happen. I do not agree with that, but he made the point. I think, with respect, that the hon. Member for Don Valley is saying that it would be a good thing if cases that were unlawful were covered by the ouster, which is about preventing judicial scrutiny. In Cart cases, whether free, 7% or 5%, those cases were unlawful. It is not that we are not prepared to put the resource in and do not believe we should prioritise that type of case. I want to be clear about this. Is he saying that it is good if we introduce the ouster in Cart because that will mean that cases where an unlawful act has taken place will still not be decided and that deportation, or whatever he wishes to see, will happen, contrary to law? From the once party of law and order, that does not sound right to me.
Nick Fletcher
I thank the hon. Gentleman for his intervention but I believe, in all fairness, that he has reiterated what I said before, and my reply would be exactly the same. How many times do we have to keep coming back to this? It is the same thing. It is about the majority of immigration cases. We seem to be batting back and forth with this, but Opposition Members are not coming up with the answers that I am asking for, either.
Sir John Hayes
The reforms that we are arguing for are to restore the system that prevailed throughout the lifetime of the previous Labour Government. This change happened in 2011. If Opposition Members are so exercised about the need for the system to be as has prevailed in the past few years, why did they do nothing about it in the long period they had in government, when they presumably felt that the system that we are now trying to restore was perfectly adequate?
Nick Fletcher
I thank my right hon. Friend for that, but I want to move on because I am conscious of time.
I do understand that these people that are coming over here are leaving places that are in a terrible state and what they are leaving is sometimes awful, and I do have full sympathy for that, but there is a legal way of entering this country, and I believe that everyone should take the legal way into this country. When people get into these small dinghies they know they are entering our country illegally. If they are entering our country illegally, then they must have to deal with the consequences that go with that.
Anne McLaughlin
On a point of order, Mr Rosindell. I am sorry to interrupt the hon. Gentleman, but is this within the scope of the Bill? This is not a Bill about borders or preventing people from coming in.
Nick Fletcher
I have almost finished anyway. If I keep being intervened on, it might take a little longer. My argument is that if people are coming into this country on their dinghies and entering illegally, then they will be dealt with through the system, and I do not believe that they should have a third bite at the cherry. That is all I am trying to say.
James Cartlidge
It is a pleasure to wind up this stand part debate, which has been passionate. We have had some excellent speeches and interventions from both sides, and I will refer briefly to a few of them. The hon. Member for Lewisham East said that we are talking about human beings. We have heard cases that all of us would be sympathetic to, but that is not the point. Those using all the other parts of the legal system, where it is absolutely standard to have “two bites at the cherry”, are human beings too.
If there is a planning case, for example, where some houses are approved and your parish disagrees, it can seek judicial review through the High Court. If that is denied, it can potentially—although it is unlikely—try the Court of Appeal. That is it: two bites. That is the standard procedure, and it will still apply for cases of immigration and asylum, including all the people we have heard. As to what would happen to those who were successful, that is where we have to make a judgment on proportionality and accept that there would potentially be some cases that would have been found to be unlawful. However, as my hon. Friend the Member for Ipswich said in an excellent speech, where do you draw the line?
The Labour Front-Bench spokesman, the hon. Member for Hammersmith, quoted Professor Feldman in aid, but it was Professor Feldman himself who admitted that ultimately when we look at it—he took a very balanced view—this was a disproportionate use of resource, where 96.6% of cases are proving to be unsuccessful. When the rate of failure is so high, I wonder why legal representatives are advising their clients to go down that path. It calls into question whether it is, in effect, another route of appeal, and a chance to extend the case further, because, as I said earlier, it can be in the system for up to three months.
Andy Slaughter
I think the Minister makes my point for me. I deliberately quoted Professor Feldman because, yes, he did see some merit in the proposals of Cart, but he went on to warn about the wider dangers—the series of quotes that I gave was on this point, which I am sure the Minister will address—of opening the door to a much wider and further restriction through the use of ouster in future.
On the cherry point, the argument I put forward was that an unlawful decision of the first-tier tribunal is not being picked up by the upper tribunal—hence the illegality and hence the deportation, or whatever it is, happening contrary to the law—and is being picked up through Cart. It is the first bite at the cherry. It is correcting an error at first instance, which has not been picked up by the upper tribunal.
James Cartlidge
The hon. Gentleman has been asked repeatedly whether he thinks, on that basis, that we should extend the right to three bites at the cherry to all other areas of law. What would be the cost? How much more resource would that take up? If he does not think that, he must be saying to all our constituents that immigration and asylum are exceptional, and overwhelmingly that immigration cases should have that additional right. I think our constituents would disagree. It is right for the Government to exercise judgment on matters of the use of resources.
Sir John Hayes
This is precisely the point I made when I intervened on the hon. Member for Glasgow North East. What are the parameters? What are the limits? Where is the line drawn? We have heard none of that from any of the critics of the Bill and the Government are simply trying to re-establish the parameters that prevailed for most of time, which give the system integrity and substance, and which make it not only workable but defensible.
James Cartlidge
I am grateful to my right hon. Friend. I want to correct one point about what happened under previous Labour Governments. It is quite extraordinary that the hon. Member for Hammersmith talks about this tightly drafted ouster clause somehow being a precursor to further ouster clauses that could go much wider. As I said on Second Reading, the Minister responsible for Labour’s Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the right hon. Member for Tottenham (Mr Lammy), admitted in this sort of Committee sitting that they were trying to bring in the mother of all ouster clauses, so widely was it drafted. To be clear, it was not the same system. It was not the upper tribunal. There was a single-tier immigration and asylum tribunal. Judicial review was in that sense the second tier. They were going to remove it even where they did not have the upper tribunal in place. That is an extraordinary situation and it underlines that what we are restoring is a situation wholly consistent with the European convention on human rights.
James Cartlidge
I will take one more intervention from the Opposition, and then another from my right hon. Friend.
Andy Slaughter
I am not going to speak for my right hon. Friend the Member for Tottenham, who is better able to speak for himself. Let us imagine that the Minister was correct, and that that was an error. Why have the Government not learned from that? Why are they coming here to make the same mistake again, in the same terms?
James Cartlidge
The hon. Gentleman does not want to answer, because he knows he cannot defend it. He cannot answer the point. If he thinks it right that in order to find these few cases of legal merit, someone should have three bites at the cherry, why does he not apply that to all other areas of law? He either thinks it should be applied, in which case, clearly, we would be gumming up the courts with a much greater burden of pressure, which would make clearing the backlog completely impossible; or he thinks that immigration and asylum is an exception. You cannot have it both ways.
James Cartlidge
I am not giving way to the hon. Gentleman again. I give way to my right hon. Friend.
Sir John Hayes
I want to emphasise what the Minister is saying. He is going much further than I did. I was giving the Opposition too much credit—saying that we simply wanted to return to a system that prevailed before 2011. The Minister has told us, revealingly, that the Labour Government wanted to restrict the system further. They wanted to do more than this Bill does. Frankly, on that basis, the Opposition case seems to fall at the first hurdle.
James Cartlidge
My right hon. Friend is absolutely right. Let us be clear: the Labour party can take up as many positions as they want on ouster clauses, supporting them when in government, opposing them now, but a High Court judge cannot sit and listen to two cases at the same time. That is a fact. The question of resource is fundamental.
I want to return to the point about backlog. My hon. Friend the Member for Ipswich made an absolutely correct point. Of course this matters in the context of backlog—it is absolutely absurd to suggest otherwise. I have asked the senior judiciary about the backlog and the pressure points for capacity. Of course, there is a pressure point in terms of judicial resource, when we look at the limited number of very experienced High Court judges and so on. It is by definition a limited resource. I asked where we will find, for example, the judges to take murder cases. They will come from High Court judges. It may not be a judge that sits in the administrative court on this sort of appeal—it may not be someone who sits on a Cart JR—but it could be. The resource has to come from somewhere and more pressure on the courts, with hundreds of cases a year for something where the chance of success is so low, completely undermines our ability to deal with other serious cases. I am bound to point out that the Opposition voted on Second Reading against the entire Bill, which includes many other measures that reduce the pressure on the Crown court, as we shall hear later.
It is absolutely outrageous for the hon. Member for Hammersmith to bring in rape. It is totally indefensible for him to do so. He knows full well that in the wake of these terrible murders, all the focus of the Government and people across the country is on the great anxiety felt by women and girls about what is happening. We all share that. We all sympathise with the families who were hit by those tragedies. That is why we have measures in place across the board. We have published the End-to-End Rape Review precisely to increase the number of cases that the police choose to take forward, that the Crown Prosecution Service chooses to prosecute and which end up in court. That is the whole point of the review.
The key point is: a rape case is indictable. Where will it be heard? In the Crown court. In the Bill we have clause 10, which moves more cases from the Crown court to the magistrates so that we can free up 400 sitting days. That is a huge amount: 180 plus 400 is 580 sitting days. That is a lot of resource, so it does matter. I am sorry, but it is wholly unacceptable to conflate the two points.
Our constituents understand the basic point, as mentioned by my hon. Friend the Member for Ipswich, that gumming up the courts with immigration cases with very low chances of success using a right not available to most of our other constituents through other forms of justice will have an impact on the backlog. They know that the right thing to do is to remove this route of judicial review. That is why I urge my colleagues, with the huge amount of common sense that exists under my merry band of Committee members, to vote for clause 2, so that we streamline justice in a way that is fair and equitable for all people in the justice system. The clause would ensure that we have proportionate use of resource so that we can bear down on the backlog. I urge colleagues to support clause 2.
Question put, That the clause stand part of the Bill.
Judicial Review and Courts Bill (Sixth sitting)
Tuesday 9th November 2021
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Chair
Before we begin, I remind hon. Members that they are expected to wear a face covering except when speaking or if they are exempt. This is in line with the recommendations of the House of Commons Commission. Please give one another and members of staff space when seated and when entering and leaving the room. I remind Members that they are asked by the House to have a covid lateral flow test twice a week, if coming on to the parliamentary estate. That can be done either at the testing centre in the House or at home. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. Tea, coffee and any other drinks, apart from water, are not allowed during sittings.
Clause 3
Automatic online conviction and penalty for certain summary offences
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 45, in clause 3, page 4, line 29, at beginning insert—
“(1) Before this section may be commenced, the Secretary of State must—
(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences as set out in Clause 3 of this Act;
(b) lay before Parliament the report and findings of such independent review; and
(c) provide a response explaining whether and how such issues which have been identified would be mitigated”.
This amendment would require a review of Clause 3 of this Bill before it is introduced.
Good afternoon, Sir Mark. It is, as ever, a pleasure to serve under your chairmanship. I would like to take this opportunity to welcome my hon. Friend the Member for Hammersmith back to his place on the shadow Justice Front Bench. It was my privilege to serve as Parliamentary Private Secretary to our wonderful Mayor of London, Sadiq Khan, when he was shadow Lord Chancellor and my hon. Friend was a shadow Minister. I was pleased to learn from him then, and continue to do so today. It is also good to welcome the Minister to his place as we face each other across the room formally for the first time. I hope that this will be the first of many such opportunities.
I do not underestimate the job that the Minister has taken on, given the crisis in our courts, the record backlog in the Crown court and elsewhere, and a Justice Department stripped of resources over the last decade. Just in case he tries to rely again on the covid pandemic as an excuse, let me point out that it was all in a terrible mess long before covid and long before he arrived in his post. Just one of the facts that I have picked up is that in 2010 there were 152,791 Crown court cases, which took an average of 391 days to complete; in 2019, there were 107,913 Crown court cases, which took an average of 511 days to complete. Clearly, the Minister has his work cut out. We wish him well with it and will be happy to offer our contributions and advice along the way.
I also pay tribute to the Committee Clerks for their, as ever, first-class professionalism and support as we prepared for this Committee stage.
My final thanks go to stakeholders outside the House, including Justice, Fair Trials and Transform Justice, among others, for their energetic and constructive scrutiny and input, which have been of great assistance in identifying potential concerns about the Bill’s practical implications.
Given the amendments we have tabled—the first of which I shall speak to in detail shortly—it will be no surprise to the Minister that the Opposition have reservations about clause 3. However, we do very much recognise the need for, and indeed the benefit of, potentially moving some court processes online, so I will share our concerns in the hope that the Minister can provide reassurances to quell them.
The clause will create an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing. The Bill’s explanatory notes state that, to begin with, the procedure will apply only to offences involving
“travelling on a train or tram without a ticket and fishing with an unlicensed rod.”
It is critical to note that secondary legislation approved by the affirmative procedure may make additional offences eligible.
As currently drafted, the clause has limitations. For instance, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. Although we agree that these limitations, such as they are, are appropriate, there are a number of areas in which we think the safeguards built into the procedure need to go further.
The proposal to introduce online pleas was first made in the Prisons and Courts Bill in 2017. Transform Justice noted:
“It had not been subject to any public consultation then and still hasn’t.”
The assumption behind the clause, as with the expansion of written pleas, which we will come to in a later debate, is that a plea hearing is a straightforward and purely administrative hearing. It assumes that people will straightforwardly know whether they are guilty and will need no direction, assistance or support in pleading guilty to a criminal offence. I said earlier that this procedure is an online alternative to the single justice procedure, but there is an important difference. The single justice procedure allows defendants to choose to enter a plea in writing or online for the same types of offences that the automatic online conviction and standard statutory penalty will apply to—that is to say, summary or non-imprisonable offences.
Those who plead guilty and do not request a hearing under the single justice procedure are convicted and sentenced by a single magistrate on the papers before them, and the defendant has the chance to submit mitigating factors to inform the magistrate in writing. If a defendant fails to respond to the letter setting out the charge within the 21-day time limit, the single magistrate will hear the case without any input from the defendant or prosecutor. However, the Bill’s explanatory notes make clear that under the AOCSSP—is there a way of pronouncing that? I do not know—cases could take place entirely online and without the involvement of a magistrate.
Under the single justice procedure, the magistrate can decide that a case is not appropriate to convict under said procedure, which provides at least a minimal level of safeguarding within the process. However, under the AOCSSP, as Justice notes, there is
“no independent judicial (or indeed, human) oversight whatsoever. Moreover, defendants who use the AOCSSP procedure will face a binary choice, with no opportunity to submit mitigating factors if they plead guilty, unless they choose to decline”
the procedure and take the single justice procedure route instead.
The complete lack of human involvement in the process worries me. As a consequence, the Opposition have tabled amendments that seek to build into the process at least some level of safeguards. Although we agree completely with the Government that any online procedure should be optional, I also share Transform Justice’s scepticism, in that the defendant may not feel that they have much of a choice at all. How does the Minister think those pitfalls can best be communicated to the defendant?
The current introductory letter to the single justice procedure notice does not mention the option of pleading in court at all; it is only on page 3 of the following document that it comes up. To be honest, if I received one of these notices, even as the shadow Minister for such matters, I am not sure I would understand from the document that I had a genuine option to make my plea in a physical court hearing, rather than online or by post. Even when defendants understand that such a choice is available to them, I do not think that the information accompanying the note enables them confidently to make the best decision in their case. Some legal expertise is clearly required to know the benefits of pleading in court as opposed to pleading online. Again, I admit that even as the shadow Minister—I do not have any legal training at all; I am a journalist by profession—I would not be able appropriately to weigh the benefits of one course of action against the other. I hope the Minister understands what I mean. I am not trying to be obstructive or frivolous, but I think that the lay person receiving such a notice is currently not particularly well equipped to make a decision about their plea.
Transform Justice’s briefing calls on the Government to
“conduct and publish research on defendants’ understanding of the concept of viable defence and of mitigation, and of the factors to be taken into account in waiving the right to a ‘fair and public hearing’.”
That is an important point. The briefing also notes:
“The European Convention on Human Rights requires that in the determination of a criminal charge ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. It also guarantees specific minimum rights for those charged with a criminal offence, including the right to be informed of the nature and cause of the accusation, to defend yourself in person, and to have the assistance of an interpreter. The right to a fair and public hearing can be waived by the defendant, but only if they fully understand the charge and the implications of waiving their entitlement.”
Experiences of the single justice procedure suggest that many defendants will not fully understand the charges and the implications of waiving their entitlement to a public hearing. Research into such experiences could be an interesting and productive piece of work for the Department. I would welcome his thoughts on it, or, if his Department has considered the matter already, I would be grateful for more information about its work.
Another concern that has been raised about the expansion of the use of online pleas is that it may inadvertently drive an increase in the number of defendants without legal representation.
Janet Daby (Lewisham East) (Lab)
Given the significant changes that are taking place in how people plead—online, by post and so forth—does my hon. Friend think that the Government should conduct a public consultation? From what I have read, that is not happening.
Alex Cunningham
I am grateful to my hon. Friend for her intervention. She is correct, and she makes exactly the point that many of the people working in the sector are saying to the Government: we need better data and more examination of the data to drive the best legal system that we can possibly have.
There is a possibility that the expansion of online pleas may inadvertently drive an increase in the number of defendants without legal representation and, importantly, and as a consequence, worse outcomes for defendants. That concern was specifically raised by Transform Justice, which worries that encouraging defendants to plead online
“will lead to more defendants representing themselves … since the process of ‘doing it yourself’ may appear easy.”
I note that the current single justice procedure notice encourages the option of pleading online over the postal option. Pleading online, the defendant is told, is “quick and easy”. They are informed that they will receive a confirmation email, so that they know their plea has gone through—just like buying something from Amazon. The notice warns:
“You need to pay correct postage and allow enough time for delivery”.
That is helpful advice, but I worry that we are already seeing a push towards online pleas marketed as justice made easy for the defendant when that is not necessarily going to be the case. It may be easy, but it may deny them proper justice.
In fact, entering a plea can be a very complex decision. Transform Justice’s research on unrepresented defendants in the criminal courts found that entering a plea was one of the times when defendants without legal representation were most disadvantaged. As they note in their briefing,
“Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but also pleaded not guilty when the evidence against them was overwhelming, thus losing credit for an early guilty plea if convicted.”
I am aware that the explanatory notes to the Bill suggest that online pleas will be able to be entered only if the defendant has legal advice, and I understand that it is the Government’s intention that that would be done through the common platform. That would mean that the defendant would need to engage the services of a legal professional. However, I am concerned that that safeguard has not been put into the primary legislation. I will speak about that more fully in the debate on amendment 48 later this afternoon.
Even more worrying is the fact that paragraph 59 of the Bill’s impact assessment seems to suggest that that safeguard will be available only to those accused of more serious offences. As the Minister knows, the implications of a guilty plea, even for minor offences, can be significant, including a criminal record for life that can detrimentally impact employment prospects, among other things. I would be grateful for reassurances from the Minister that the online system will include information that ensures that the defendant is aware of all the possible impacts of choosing to enter a guilty plea. Again, I will speak to that point more fully in the debate on amendment 50.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
That’s not much, though, is it?
Alex Cunningham
That depends how much beer a journalist drinks these days; I think we used to put away many more pints than desk-bound journalists tend to now.
The process makes it easier for offenders to escape notice. [Interruption.] I hear the Minister acknowledge that that is the case and I look forward to hearing his proposals to ensure that we have the open justice we all strive for. He has said that he takes issues of transparency and open justice seriously, and I do not think this is an intentional consequence of the Government’s proposals, but it is potentially serious. Will he confirm that some measure of external scrutiny will still be possible under the AOCSSP? Will listings for all cases and their outcomes at least be made available to all? If not, it will be a serious blow to open justice.
I would be grateful for the Minister’s thoughts on the suggestion that the AOCSSP could form a barrier to effective participation in the justice system. As Transform Justice notes,
“All online conviction processes will start with a postal charge. These charges are sent through ordinary mail and there is no proof of their receipt”—
no proof whatsoever. It continues:
“The fact that two thirds of defendants do not respond by submitting a plea indicates that any criminal process which relies on defendants responding to a postal charge seems to present significant barriers to effective participation.”
Janet Daby
The postal charge raises significant concerns. I know of constituency cases where people have changed address and their benefit letter has gone elsewhere, so they have ended up with frozen benefits. There will be huge problems ahead if things are sent by post and end up in somebody else’s postbox, or if people move and do not receive letters. I am particularly concerned about people with mental health issues and vulnerable people who, even if they do receive a letter, may not be able to interpret it.
Alex Cunningham
My hon. Friend is correct and gives excellent examples. I had an example a few weeks ago of a constituent who found out that he was likely to be locked up because he had not paid his television licence. He had not received the letter because he was no longer at that address. I know that he had a responsibility to inform people that he had moved on, but the fact that nobody tried to find him before it got to the point of court bailiffs turning up at the previous property to take goods away to pay his fines and court costs is a nonsense. Clearly, that can happen.
Paula Barker (Liverpool, Wavertree) (Lab)
Does my hon. Friend agree that the Government’s equality impact assessment does not recognise the issues that he has eloquently raised about the postal charge?
Alex Cunningham
Almost certainly. Our hon. Friend the Member for Lewisham East talked about people with mental health problems or disabilities who are all disadvantaged by these proposals, because no adequate system seems to be in place to ensure that they properly understand what they are doing and what is happening to them. If they do not understand, they may choose to ignore it and end up with a conviction and a criminal record, which has terrible ramifications for employment and all manner of other things, including even entering another country. If they have a criminal charge against them, they may not be able to go on holiday to some countries.
Janet Daby
I find all this deeply concerning. I wonder whether the Government actually want the postal charge system to work.
Alex Cunningham
The last thing I expect from my hon. Friend is cynicism. I am sure the Government want the justice system to work correctly, so it is time they looked carefully at this. As I develop my arguments, I will talk about the need for research and data, which is absent. We have asked for it in the past, but no specific data exists on why people choose to ignore or do not even respond in any shape or form to postal charges.
We do not know why so few people respond to postal charges. It does not seem sensible to expand the use of postal charges until we have more data on the issue. One reason that has been suggested is that many defendants do not even receive the letter. I have already talked about that; it might be sent to an old address, for example. Perhaps the person does not even understand the letter that they have received. The defendant, as we have discussed, might have a mental health condition or a neurodivergent condition that presents a barrier to understanding.
Although phone calls for someone on benefits are now on a freephone number, the initial calls to the HMCTS assisted digital advice on how to fill in a physical online form are charged at local rates. Yesterday I received from the Minister the answer to a written question on support for some vulnerable defendants. I asked what training prosecuting authorities who use the single justice procedure, and who are not the CPS, receive on disability and neurodivergent conditions. The response stated:
“The Ministry of Justice is not responsible for training prosecuting authorities and thus cannot speak to whether they receive training on disability or neurodivergent conditions. In response to the Neurodiversity in the Criminal Justice System: A review of the evidence report, the Ministry of Justice is taking a whole system approach and are working with HM Courts and Tribunal Service, HM Prison and Probation Service, Home Office, Department for Health and Social Care and the Welsh Government to”—
here is the key word for me—
“consider neurodiversity training for all frontline staff within the Criminal Justice System.”
Surely, Minister, it should not be “considered”. It should be a case of deciding how we ensure that it happens and that people across the criminal justice system are fully equipped and trained to deal with people in these circumstances.
For people on low incomes, I worry that the proposals present a significant and unnecessary barrier to engaging with the process. Does the Minister have any thoughts on remedying that? Earlier I looked at the AOCSSP, which seems to disproportionately affect those on low incomes. In a normal court hearing and under the single justice procedure, defendants sanctioned with a fine are asked to state their means, to enable the judge to adjust the fine if necessary. Under the online conviction procedure, everyone would be made to pay the same fine, because there would not be any information on which to base a different decision.
I understand that the equality impact assessment suggests that defendants on low incomes will be made aware of the option to opt for an in-person hearing instead, so that their financial position can be taken into account. I have already spoken about my concern that defendants would not understand that there is a real choice to opt into an in-person hearing, so I am not sure that this is a sufficient safeguard for those on low incomes. Does the Minister have any thoughts on any additional safeguards to protect those on low incomes from being further disadvantaged, since that is identified in the Government’s own impact assessment? Under the AOCSSP, could it be made much clearer that it would be preferable for someone who needs their financial situation to be taken into consideration to opt for an in-person hearing? Is the Minister aware of any existing data relating to whether those who have pleaded under the single justice procedure and the automatic online conviction process have been the recipients of heftier fines than those who attended in-person hearings?
Another possible barrier to effective engagement could surface for defendants with disabilities. The Equality Act 2010 requires public bodies to make reasonable adjustments for people with disabilities. I struggle to see how the AOCSSP will be able to support the use of reasonable adjustments. The Bill makes no provision for screening to see whether defendants will need reasonable adjustments to be made. I will speak to that point more fully in the debate on amendment 57, but it is important to consider the issue briefly at this point. Under the current process for a single justice procedure, defendants are asked to tick on the form if they have a disability. What if their disability has prevented them from opening the letter or understanding the form? How does the Minister think we can address that barrier to participation?
Alex Cunningham
I am glad the Minister is pleased. The amendment would mandate the Secretary of State to commission and lay before Parliament an independent review of the potential impact of the AOCSSP on defendants and the criminal justice system, its efficacy and operational issues.
I have spoken at some length about the numerous concerns raised about the procedure, and sought the Minister’s reassurance on many of them. The most appropriate form of reassurance would be an independent report into the impact of the procedure. The procedure marks quite a significant shift in the way we handle criminal cases and would establish the principle for all summary and non-imprisonable offences to be automated through an online plea, conviction and penalty website. The Opposition recognise the need to explore how we can deploy technology in the criminal justice system, but we do not agree that it can be done without a robust evidence base, especially when we are dealing with changes that potentially pose a threat to defendants’ rights, access to justice and the principle of open justice.
As JUSTICE has noted, the evidence base for the procedure is poor and none of the reports that the Government refer to in the Bill documents—Sir Robin Auld’s 2001 “Review of the Criminal Courts”, Sir Brian Leveson’s 2015 “Review of Efficiency in Criminal Proceedings” and the Government’s own 2016 consultation, “Transforming our Justice System”—explores the real world consequences and risks inherent in the procedure. Furthermore, the 2016 Green Paper, in which the Government first proposed the introduction of an online conviction system, stated that the system should be using three offences before any decision was taken to make it permanent. It noted:
“We propose to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme, which would be: Railway fare evasion; Tram fare evasion; Possession of unlicensed rod and line. If this initial phase is successful, we plan to bring other offences, particularly certain road traffic offences, into the system in future.”
Andy Slaughter (Hammersmith) (Lab)
It does seem to be a bit of a feature of this Bill. When we were dealing with clause 2, we heard that the abolition of the Cart judicial review was to be a template for other offences, and the same is happening here. Does my hon. Friend agree with me that it is slippery slope? [Interruption.] I hear the Minister snorting from a sedentary position—
Andy Slaughter
Even with the offences my hon. Friend has named so far—offences in which honesty is a factor—it is very important that the questions that he is asking are answered before we approve the Bill, especially if we are to get the number of offences increased through secondary legislation.
Alex Cunningham
My hon. Friend is entirely correct. That is why we have tabled the amendment, which would require data and proper research to be conducted, so the Government have something by which to measure their success or otherwise in introducing the procedure. My real concern is that future offences may well just come through the secondary legislation route, where the amount of scrutiny is somewhat limited. The Government propose using the procedure in the Bill initially for these offences, but nothing in the Bill suggests that the testing procedure the Government committed to in 2016 will actually be used to assess the procedure. Can the Minister confirm otherwise? That would be welcome.
As Transform Justice has pointed out, there is no evidence in the public domain about the online motoring conviction system, which was introduced in 2015. There is no public access to the postal charge paperwork, nor to the online form. There is no public data on how many people respond to the postal charge—we covered that point already—or how many complete the form online. There is also no data on how many people plead guilty or not guilty, or on the sanctions received.
The Government consulted on the automatic online conviction proposal in 2016, and many of the respondents raised concerns. None have been allayed in the interim. Indeed, the single justice procedure, which the procedure builds on, had only been in use for one year when the Government consulted on the online procedure. Since then, much more information about the workings and indeed failings of the single justice procedure has come to light. The Government have not explained how the current issues with the single justice procedure would not simply translate across to the AOCSSP procedure, or even be exacerbated, given the removal of any human oversight. JUSTICE has also said that it is not aware of any similar system deployed in other jurisdictions from which any advantages or disadvantages could be studied.
For those reasons, the Opposition believe that amendment 45 is vital. Significant changes to our justice system should be evidence based, and making evidence-based decisions now will save the Government and the justice system a lot of problems further down the line. I appreciate that I have sought rather a lot of information from the Minister thus far, but we are very keen that we go down the route where we get it right. I look forward to hearing the Minister’s thoughts.
James Cartlidge
It is a pleasure to have you back in the Chair, Sir Mark, after your brief absence. That was a very important set of questions. Obviously, I am speaking particularly to amendment 45. Other amendments have been tabled to the clause and I think we will end up covering everything. I will try to answer the main questions, but hopefully by the time we get to stand part we will have broadly covered all the key questions.
I am grateful to the hon. Gentleman for his welcome, and wish the same to him. He has a different style and approach from the hon. Member for Hammersmith, but they make an interesting pair, and I look forward to further jousting and deliberations on the Bill. The hon. Member for Stockton North said that it is not all the pandemic. He is right: most of the difficult decisions about funding criminal justice had to be made in the 2010-15 Parliament. There is a good reason for that. It was not a pandemic; it was inheriting a catastrophic economic position because of the mismanagement of the previous Government.
James Cartlidge
I am talking about 2010. The hon. Gentleman knows full well that there is no parallel universe in which difficult decisions did not have to be made. Had Labour stayed in power in 2010, they would have made significant cuts to the Ministry of Justice. That is a fact, but we are here today and looking to the future, and the future is digital. Digitalisation offers many ways to improve and streamline justice, but of course we must ensure that safeguards are in place. I will come to a few of the specific questions, and then to the amendment.
Probably the most important question is what happens if the defendant does not receive notification of the charge or conviction. How will they respond? What do we do? We may be confusing two procedures. There is the single justice procedure, and there is the new procedure—I simply call it the automatic procedure. The hon. Gentleman is right: even the acronym is impossible to remember, let alone the full name. In the SJP, it is worth stressing that defendants who have no knowledge of proceedings brought against them via summons or requisition until after a magistrates court has begun to try the case will be able to make a statutory declaration to restart the proceedings—that is, for example, if the correspondence was sent to the wrong address. To reassure all colleagues, in the automatic procedure, the person considered has to opt in. If they do not receive notification, that procedure will not be used. It is fairly straightforward, and an important safeguard.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Can my hon. Friend confirm what would happen if somebody did not receive the post, the case went to court, and they were convicted in their absence? Could that happen, or would they have to be informed?
James Cartlidge
That is a very good question. To be clear, they have to opt in. If they received it and did not respond, they would not have been able to opt in. Therefore, the online procedure would not have taken place. I understand why my hon. Friend asks that question.
The previous Government consulted on this proposal from September to November 2016. The Government’s response in February 2017 to their consultation on transforming our justice system set out their intention to proceed with the new automatic online conviction and standard statutory penalty procedure, otherwise known as an acronym that I will not attempt, interesting as it is.
Open justice is a very important question. The hon. Member for Stockton North, as a former journalist, will very much respect the fact that matters of justice are of intense interest to the media and to journalists, and he is right that it is important in our democracy that we give them that access. We have to ask how much interest there would be in someone who has not paid a fine on an unlicensed fishing rod and so on, but to be clear, case information, including details of cases to be considered and outcomes, will be made available to the media and other interested parties in line with the criminal procedure rules.
The common platform is a very important question. There is possibly a slight confusion, which I can understand, as it is complex and there are lots of different clauses and procedures. Strictly speaking, in using the automatic procedure, the defendant is not using the common platform. It is a separate public-facing interface.
The common platform is used by practitioners and the criminal justice system. Clauses 6 and 8 relate to the common platform, because in those cases, the person would have to have legal representation because they could not enter, for example, an early plea online because it has to be done through the common platform and that has to be done through a practitioner. To be clear, there is a difference.
Alex Cunningham
I am interested in the issue of people having a day in court or saving a day off work. Many people will make the wrong decision when they come into contact with the justice system in that way. Is there not a real concern about individuals who do not know what they are doing, who may have mental health problems or other disabilities, and who cannot make the right decision? A day off work would not actually matter.
James Cartlidge
To be clear, I am not talking about a day off work. If they go into court, the issue is not having the income—for example, if someone is self-employed. It may be less of an issue for someone who is permanently employed; it depends on their contract. I think it is important for people to have the option, particularly if they are time poor. I stress that it is a choice.
Dr Johnson
What information will be provided in the letters when they are sent out, so that people can make the right choice? If the hypothetical plumber chooses to pay a fine, which may be less than the money that he would lose from missing a day’s work, he may think that he is financially better off because he is not going to court. Assuming that he is innocent, however, how will he get information about the consequences of the record? Will that be provided in the letters?
James Cartlidge
The answer is very simple. If the person concerned is innocent and pleads not guilty, the case is heard in court. This procedure is for people who are guilty and wish to plead guilty online to save themselves the hassle of going to court, given that they are guilty.
James Cartlidge
Hang on, there were simultaneous interventions. I will give way to the hon. Member for Blaydon.
Liz Twist
I wanted to address the issues in amendment 49 that we discussed at the evidence session with Justice, which is the class of case that will be dealt with through the system. I raise it now because the Minister is talking about the ease of going through the automatic procedure. Is he not concerned that people will be tempted to plead guilty just to get it over with, and will then find that they have a conviction? In my experience as a trade union officer, people accepted a caution because it got it out of the way, but then found that they had a criminal record that they had to declare to their employer.
James Cartlidge
It is a good question. I respect the hon. Lady’s background before she became an MP and she speaks with a lot of experience. These are non-recordable offences, such as not being in possession of a valid ticket on a train or tram or having an unlicensed fishing rod. They are all non-recordable, so they will not result in a criminal record.
I will amend what I said earlier to my hon. Friend the Member for Sleaford and North Hykeham. When I said “if a person is innocent”, I meant to say “if they intend to plead not guilty.” It is a semantic point but important to get right.
Andy Slaughter
I have a genuine question. If the provision is extended to other offences, is it the Government’s intention that any offences dealt with will be non-recordable in that way?
My hon. Friend the Member for Stockton North made some really thoughtful points, which the Minister is now addressing. What I am getting at is that the court appearance is a sort of framing event, and that can work both ways. First, it avoids trivialising the offence: it concentrates on it, is public and has the effect of exhibiting the offence to the wider world. Secondly, it acts as a way of thinking about where the offence is going—there may be legal advice, the court itself may be able to advise and the process of going to court may alter the defendant’s disposition. Has the Minister thought about all that and about the type of offences to which the provision might apply in future?
James Cartlidge
If I address that, I will be straying into the territory of future amendments. If the hon. Gentleman will forgive me, I should say that we will cover those issues in considerable detail.
I will now crack on with the remainder of my comments about amendment 45, which is about a review. I appreciate that this is a very new type of procedure for dealing with certain minor offences and that we cannot be certain of its impacts. However, we are committed to reviewing the operation of the procedure, which is why we are proceeding with caution.
Only three offences have initially been proposed for prosecution under the new procedure: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. As part of this initial implementation phase, we will carefully monitor and review the potential impacts of the procedure before we consider whether to extend it any further. The procedure has a number of safeguards, which I will set out in further detail when we discuss the next group of amendments and during the stand part debate. I want to stress that the procedure is entirely optional and that it will remain the defendant’s choice whether they wish to proceed with an automatic online conviction or opt for a traditional hearing in court.
Alex Cunningham
I am grateful to the Minister for his response and recognise that there are other issues to cover, which I mentioned in my speech; there are other amendments as well.
I am pleased to hear the Minister commit to carrying out a proper review of the procedure, as that is what the amendment sought. I see no need to press it to a vote. I thank him for his input and look forward to developing some of these issues during debates on the remaining amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 46, in clause 3, page 4, line 29, at beginning insert—
‘(1) Before this section may be commenced, the Secretary of State must publish—
(a) an equalities assessment concerning the impact the automatic online conviction and penalty process will have on individuals with protected characteristics, as defined in the Equality Act 2010; and
(b) an impact assessment on the effective participation for defendants with vulnerabilities, and must lay such assessment before Parliament.”
This amendment would mandate the Secretary of State to publish assessments regarding the impact of Clause 3 on individuals with protected characteristics as defined in the Equality Act 2010 before its commencement, as well as those with vulnerabilities.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 3, page 4, line 29, at beginning insert—
‘(1) Before this section may be commenced, the Secretary of State must publish statutory guidance which sets out how prosecutors should provide and explain to defendants any information contained within the required documents in an accessible way.”
This amendment will mandate the Secretary of State to publish guidance for prosecutors on how to ensure that defendants fully understand the information provided to them.
Amendment 48, in clause 3, page 5, line 32, at end insert—
“(e) the prosecutor is satisfied that the accused has engaged a legal Representative”.
The amendment would provide that the accused cannot be convicted online via the AOCSSP procedure without legal assistance.
Amendment 57, in clause 3, page 5, line 32, at end insert—
“(e) the prosecutor is satisfied that the accused does not have any vulnerabilities and disabilities that impede the ability of the accused to understand or effectively participate in proceedings, having undertaken a physical and mental health assessment.”
This amendment would require that all accused persons considered for automatic online convictions are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
Amendment 50, in clause 3, page 6, line 6, at the end insert—
“(d) a document in clear and accessible language which—
(i) explains the consequences of agreeing to an automatic online conviction and penalty; and
(ii) directs the accused to legal advice and information.”
This amendment would include further information about the consequences of engaging with the automatic online conviction process and a signpost to legal advice within the required documents that are sent to the defendant.
Alex Cunningham
I thank Justice and Fair Trials again for their helpful input into these amendments. As a set, the amendments all deal with the need for safeguards in the procedure—we know the procedure that we are referring to—both by identifying possible issues before the procedure is used and by building in safeguards to the procedure itself. The Minister may think that he has covered the bases, but I want to help him to ensure that the belt and braces are in place, to best support justice.
Amendment 46 would mandate the Secretary of State to publish assessments on the impact of clause 3, before its commencement, on individuals with protected characteristics as defined in the Equality Act 2010, as well as on those with vulnerabilities. I have just spoken at length about amendment 45 and the need for the provisions in clause 3 to be well evidenced before they are implemented; amendment 46 addresses that point further. I am aware of the equalities impact statement, published alongside the Bill, which states that, in relation to the criminal procedures section of the Bill:
“we do not expect these changes to have a negative impact on any particular group, as the majority of these measures are designed to make the criminal court process easier for all court users by offering additional ways in which people can engage with the court that will significantly improve user experience and reduce user costs.”
Some may think that that’s all right then, but it certainly is not. The Government’s equality impact assessment deals with the impact of the procedure in two paragraphs and only discusses issues relating to income levels. However, there is evidence, predominantly from the single justice procedure, that suggests that the new procedure may disproportionately impact individuals with protected characteristics.
Stephanie Needleman, the acting legal director of Justice, shared such concerns with the Committee in the evidence session last week. She mentioned women as a group of concern, as the existing single justice procedure disproportionately targets women. APPEAL’s Women Justice Initiative notes,
“the vast majority of those being prosecuted and convicted of TV licence evasion are women.”
Its research shows what can happen in the absence of sufficient safeguards, with women facing criminal records despite not having received a letter, or where the letter was sent to the wrong address. Although there are issues that can affect anyone who receives a postal charge, the fact that women are more likely to commit certain so-called low-level offences means they are impacted to a greater extent. The Government’s impact assessment does not recognise that, and therefore does not suggest anything to address the issue. It is important that this disparity is recognised and is not replicated in this procedure. Stephanie Needleman he also raised concern about the potential impact on disproportionate representation of ethnic minorities in the criminal justice system, particularly as the new procedure has such minimal safeguarding built in.
The Opposition believe it is vital that further research is done to ensure that disproportionate numbers of ethnic minority individuals are not unduly criminalised through procedures that contain weaker safeguards than are currently provisioned under the single justice procedure. We are also concerned that the impact assessment makes no attempt to look at whether the new procedure will have a disproportionate impact on neurodivergent individuals or others living with mental health conditions and other disabilities. Justice’s report “Mental Health and Fair Trial” notes that criminal justice processes often do not account for an individual’s particular needs, which may hamper their ability to understand what is happening. This concern is then amplified within the single justice procedure where there is lack of opportunity to screen for health conditions or vulnerabilities and assess whether the process is suitable.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Gentleman is making a compelling case. I agree with a lot of what he says and I know the Minister will too, because he has been very sensible about the need to review this and consider it carefully before it is extended. In addition to the groups that the hon. Gentleman identifies, there are simply older people—people who do not have the wherewithal to navigate systems. They may not be people with mental health issues, although I take the point about that. They may simply be people who are not comfortable with online transactions. I would rather see far fewer things put online, by the way—I would like a move in the opposite direction in life and in the provision of public services generally, but the hon. Gentleman is not pressing for that; I am far more radical than him, I can tell. I hope he would include in his assessment, and I hope the Minister will too, those people who may simply struggle with online services.
Alex Cunningham
The right hon. Gentleman makes my case for me. I am most grateful to him. My dad is 90 and my mother is 88; she sadly has dementia but my dad still looks after her. As someone who is on the ball, I think he would really struggle in this sort of situation. I would not want that.
I am encouraged by the Minister’s very positive response to the first amendment. I am sure he is moving in my direction and I am very grateful. Perhaps when we come to a vote, the right hon. Gentleman will join me in saying, “Aye!” at the appropriate moment.
Alex Cunningham
Some might say he had gone a long time ago.
We are worried that the issue will only be further exacerbated by the new procedure, with the removal of any form of human oversight and involvement in the process at all. As I said in my earlier speech, the new process may represent a significant shift in our justice system as we look to increase the use of technology to maximise efficiency, but it is important that we do not take the step without knowing what it will entail for all types of defendants and place appropriate mitigations in place. The Government’s assessment further states:
“However, as is the case more generally across England and Wales, there is over-representation of certain people in the criminal justice system with protected characteristics”,
which will affect some of the proposed measures.
It sounds to me like the Government are simply accepting disproportionality as an inevitable consequence of our criminal justice system. That is simply not good enough, and that is why we want the Minister to go further with all these protections. It is also why the Opposition would like to see a more detailed equality impact assessment of clause 3 before it is commenced, as that will allow the Government to address the issues now rather than waiting until disproportionality is further exacerbated—when they say that they are committed to reducing it.
Paula Barker
Does my hon. Friend agree that not having the appropriate checks and balances in place, as the amendment suggests, could lead to further litigation down the line from those who are charged?
Alex Cunningham
Indeed, that is very much the case. The Minister talked about how a conviction made by a magistrate in the absence of a defendant can always be challenged down the line. I do not see where that fits with respect to this, and I hope the Minister will explain it.
I stress that I do not think that this is the ideal safeguard for identifying individuals with vulnerabilities—legal professionals are trained primarily in the law, not to identify issues relating to vulnerabilities. I have already said that that is not their responsibility and I do not want the Government to think that the Opposition are advocating placing that safeguarding burden on the legal profession. We are certainly not doing that. We are, however, in favour of more safeguards being built into the system. This is an important safeguard for all defendants, not just those with vulnerabilities.
As I said earlier, I am aware of the Government’s intention for online pleas to be entered via the common platform, which I understand might seem to address the concerns we express here. As it is not in the primary legislation, however, we do not feel sufficiently reassured, which is to say nothing of the ongoing issues with the common platform—I understand the senior presiding judge has told Her Majesty’s Courts and Tribunals Service to halt the roll-out until it has been stable for at least three weeks.
I appreciate that the Government have looked at the matter, but I want to ensure that this works in some way, even if we do not agree with the method. I would therefore welcome the Minister’s thoughts on strengthening the safeguards in the legislation.
James Cartlidge
I will come to the specific amendments, but, once again, some wider points have been made. An interesting one, made by my right hon. Friend the Member for South Holland and The Deepings, was about whether the broad thrust of policy should be somehow to regress towards being more paper based than online.
That was a serious point. It was interesting that, in evidence, Aidan O’Neill from the Scottish Law Society—I asked him about the Scottish experience of the pandemic and use of technology, although my right hon. Friend will know of other areas of his expertise—made some positive observations about how technology had in many ways enabled access to justice to be maintained during the pandemic, precisely because people who would otherwise not be able to appear in court or take part in tribunals or other cases were able to do so because of the technology.
My view is that, while we have to have safeguards—I therefore totally agree with the hon. Member for Stockton North that we should go through the details of the safeguards—in principle we should never discount the sense in which technology gives more access to justice. After all, a generation of people do not have printers—they work not off paper, but off their phone. They might even feel slightly excluded if they cannot do things online.
That might seem like a strange point and, as my right hon. Friend the Member for South Holland and The Deepings said, some older generations might find that extraordinary. To be clear, however, someone could be not even analogue, but completely paper-based in how they work. My parents are pretty much like that if I am completely honest. These offences obviously exist in the single justice procedure, which is paper based. Or, as I have said throughout, people could simply opt to have their case heard in court in the traditional way.
Sir John Hayes
I do not want to delay the Minister because I am keen to get on myself, but the point really is not so much the test of convenience, which is the one he is describing, or even the test of accessibility; it is more the absence of personal interaction. The problem with moving to technologically based systems, across the private and public sectors, is that we take people out of the equation, and actually people are the cleverest thing we have. They have imagination and intuition, and sensitivity and understanding. When we systemise things, we risk losing all those virtues. By the way, long before I came here, I was in the information technology industry, so I remember well knowing that then, just as I know it now.
James Cartlidge
My right hon. Friend makes a good point. There are some things that should always be done in person. A good example is parliamentary debates because we need interventions. When we had people appearing on a television screen, unable to intervene, how could we hold them to account for what they said? However, in the legal system—the Bill underscores this—some things must be done in person, and in respect of which the resource is so precious. Of course, we are talking particularly about trials in the Crown court, which are the most serious cases. A huge part of our focus is digitising relatively—I say that word carefully—straightforward or less serious procedures, so that we maximise at every turn the physical, in-person resource for the most important proceedings. That is important.
Before turning to the amendments, I will make one further point on the position of vulnerable defendants and give slightly more information, because this is a fair point. The procedure will operate in a similar way to the current written charge and requisition procedure, and the single justice procedure. Prosecutors using those methods of initiating proceedings have developed procedures for identifying those who may need additional support. Support channels will also be available to users who require clarification of information and processes ranging from web chat or telephone assistance to more intensive face-to-face assistance. The Department has recently awarded a new contract for significant support in that area, and I am happy to provide more information later.
Amendment 46 would require the Government to publish an equalities and impact assessment before the commencement of clause 3. When the Bill was introduced, an equalities assessment and an impact assessment were published on all the measures, including the new automatic online procedure. As such, we have already given consideration to the impact that the measure could have on those with vulnerabilities and protected characteristics, as the hon. Member for Lewisham East mentioned. We have recognised that the steps we are taking to digitalise criminal court procedures have the potential to affect groups that are less digitally enabled. That is why we will ensure that the online processes are easy to follow and understand, and that support channels, ranging from web chat or telephone assistance to more intensive face-to-face assistance, will be available to all defendants who might need them, as I said earlier.
The new procedure is completely optional, and it will remain the defendant’s choice whether they wish to proceed with automatic online conviction or opt for a traditional hearing in court. The number of disabled people using the internet is increasing, and defendants with certain disabilities might in fact welcome the introduction of a new online procedure, which will reduce their need to travel to court unnecessarily and enable them to resolve their case quickly in the comfort of their own home. As I say, the new procedure can improve access to justice in some respects. I agree that it is important to monitor its impact, including on those with vulnerabilities, and we will do so on the three offences initially before we consider whether to extend the procedure further.
Amendment 57 would require all defendants charged with an eligible offence to submit to an assessment of their physical and mental health before a prosecutor could decide whether it would be appropriate to offer them the option to proceed with the new automatic online procedure. The hon. Member for Stockton North made a reasonable case, and I share his concerns that the new procedure should only be used appropriately—that word is so important. As I think I said on Second Reading in my summing up, I am someone who is I would not quite say evangelical about, but strongly supportive of, using the internet to create efficiencies, improve access, increase productivity and ensure all those benefits; nevertheless, we have to have safeguards.
As I have already set out, that is why we have built a number of safeguards into clause 3. For example, a prosecutor will offer this online option to a defendant only once they have considered all the facts of a case and deemed it suitable for the procedure. All the options will be explained clearly to defendants offered the procedure, including their right to come to court if they wish to and the potential consequences of their choosing this route. Defendants who decide to opt into the new procedure will be guided through the process, and will have access to both telephone support and face-to-face support if they should need them.
Clause 3 also provides the court with the power to set aside a conviction in the event that the defendant did not understand the consequences of their decision to accept the conviction. The effect of the amendment may be to deter some people from using a procedure whose speed and simplicity they would otherwise welcome. Indeed, there would be no reason for defendants to opt for the new procedure if the resolution of their case would be swifter under existing procedures, such as the single justice procedure, where no mental or health assessment is required.
Amendment 47 would place an additional duty on the Secretary of State to publish statutory guidance before clause 3 could be commenced. As proposed, this would be guidance setting out how prosecutors should provide and explain to defendants any information in the required documents. Clause 3 already provides for guidance under the criminal procedure rules to set out the detail of how required documents should be served on a defendant offered the new automatic online procedure.
As I have said, under the procedure defendants will be provided with all the information they need to make an informed decision, and that will be written in a clear and accessible way. The information will include details of the evidence against them, the potential consequences of choosing this route and full details of the prospective fine. Similar information is already provided on the single justice procedure notice currently sent out to defendants, which is drafted and regularly reviewed in consultation with a wide range of user groups.
If it is helpful, I will be more than happy to provide every member of this Bill Committee, either by email or even through the post if necessary, a sample of the single justice procedure, to show how it looks. I think that once members see it, they will agree that it is very clear. It is similar to what will be used in the new procedure.
Amendment 47 would require all defendants to have engaged a legal representative before a prosecutor could offer them the option to proceed with the new automatic online procedure. I stress that only summary-only, non-imprisonable offences that are straightforward and simple to prove will be eligible for the new procedure. As such, we intend the design of the procedure to be simple enough to ensure that it can be used without legal assistance.
Defendants would need to opt in actively to the procedure and could choose at any point prior to accepting the conviction to have their case heard in court instead—when they wish to plead not guilty or want the court to consider mitigating factors, for instance.
Amendment 47 is unnecessary and would contradict current practice where, generally speaking, cases of this type do not normally attract legal aid and the vast majority of defendants already represent themselves, whether under the single justice procedure or in court. That is an important point to stress—[Interruption.]
The Chair
Order. I did make an announcement at the beginning about electronic devices, so I would appreciate it if you took cognisance of that. Thank you.
James Cartlidge
Thank you, Sir Mark.
This is a new procedure; it is a new means of realising whatever the outcome of a case is. It is not a new form of justice—let me be absolutely clear about that. People plead guilty or not guilty to these offences every day and in the overwhelming majority of cases there is no legal representation because the cases are straightforward. I accept the point made by the hon. Member for Stockton North, but I hope he is reassured by the fact that defendants will be advised of their right to obtain legal advice under the procedure and will be entitled to request a full trial and obtain counsel at any time during the process if they so wish.
Amendment 50 proposes to insert an additional level of detail into primary legislation, which I would argue is unnecessary. It would require the documents served on defendants to explain the consequences of agreeing to an automatic online conviction and penalty, and direct the defendant to legal advice and information.
We have already been clear that defendants will be provided with all the information they need to make an informed decision. That specifically includes making sure that they are aware of the consequences of entering a guilty plea and accepting a conviction. The notice and online process for the procedure will be very similar to the one for the single justice procedure, which clearly sets out the consequences of making a plea. As I have said, I am happy to send copies of the single justice procedure document to colleagues.
The notice that defendants receive formally commences proceedings for the offences and gives them a set period of time in which to respond. The notice will advise defendants to use this time to obtain legal advice. As I said before, only summary-only, non-imprisonable offences that are straightforward and simple to prove will be eligible under the new procedure. As such, we intend the design of the procedure to be simple enough to be used without legal assistance.
I hope that the hon. Member for Stockton North will be reassured by the fact that we intend to implement the procedure for a small number of offences to begin with and will carefully review how it operates before deciding whether to extend it any further.
Liz Twist
I welcome the Minister’s assurance that the procedure will not be extended. However, he has just mentioned that the offences to be considered under the procedure will be reviewed. Concern was expressed during our evidence sessions that the procedure might be extended to other offences, so what further reassurance can the Minister give on that issue?
James Cartlidge
I was just about to conclude, but I think I am due to cover that point in detail when dealing with the other groups of amendments. If I am mistaken, I will make sure that it is covered, but I think I will go into more detail about that issue later, if the hon. Lady will forgive me.
As I have set out, we already have the appropriate safeguards in place to ensure that defendants are fully informed of their options under the new procedure. These amendments are therefore unnecessary, and I urge the hon. Member for Stockton North to withdraw them.
Alex Cunningham
I am grateful to the Minister for his response. We have tabled these amendments because we want to be helpful—we are not trying to be difficult. We want to ensure that there is fair justice with fair access, and that justice is done for everyone at the end of the day.
I accept much of what the Minister said, but I still have real concerns about the information provided and the systems for providing that information. He has referred to what is included in the Bill, but I am still very concerned about how people will get the right information from the right person in order to make the correct decision, and I am most concerned about the vulnerable.
The other issue, raised by my hon. Friend the Member for Blaydon, is about what the next tranche of offences could be. Will we get to a point where more serious offences will fall under that process and will be recordable offences, which will have all the impacts on employment that we described earlier?
James Cartlidge
To be clear, I think the next amendment is very specific on that point, and I will definitely cover it.
Alex Cunningham
I am grateful to the Minister. On that basis, I will withdraw amendment 46, but will press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 47, in clause 3, page 4, line 29, at beginning insert—
“(1) Before this section may be commenced, the Secretary of State must publish statutory guidance which sets out how prosecutors should provide and explain to defendants any information contained within the required documents in an accessible way.”—(Alex Cunningham.)
This amendment will mandate the Secretary of State to publish guidance for prosecutors on how to ensure that defendants fully understand the information provided to them.
Question put, That the amendment be made.
Alex Cunningham
I beg to move amendment 49, in clause 3, page 5, leave out lines 33 to 35 and insert—,
‘(4) An offence may not be specified in regulations under subsection (3)(a) unless it is—
(a) a summary offence that is not punishable with imprisonment; and
(b) a non-recordable offence, which excludes any offence set out in the Schedule to the National Police Records (Recordable Offences) Regulations 2000/1139 (as amended).”
This amendment would exclude any offences which are recordable from the automatic online conviction option.
I come to the Opposition’s final amendment to clause 3, although we have already strayed into the territory that this covers. Amendment 49 would exclude any offences that are recordable under the new procedure. I understand that the Government intend the procedure to apply only to summary or non-imprisonable offences, but we think that this needs to be further restricted.
Examples of recordable offences that the new procedure could cover include the offence of failing to provide for the safety of children at entertainments under section 12 of the Children and Young Persons Act 1933 or the offence of exposing children under 12 to the risk of burning under section 11 of that Act. Others are the offence of drunkenness in a public place under section 91 of the Criminal Justice Act 1967 and the offence of selling alcohol to a person who is drunk, under section 141(1) of the Licensing Act 2003.
Particularly topical, given that the Police, Crime, Sentencing and Courts Bill is in Committee in the other place, are the offence of failing to comply with conditions imposed on a public procession under section 12(5) of the Public Order Act 1986 or the offence of failing to comply with conditions imposed on a public assembly under section 14(5) of the Public Order Act 1986. The threshold for committing these offences will become significantly lower upon the introduction of part 3 of that Bill, where individuals could inadvertently commit an offence by causing “serious unease” or “noise”. Yet more examples relate to the sale of alcohol to children under the Licensing Act and a range of football offences, including the use of missiles and the chanting of racist language.
Those are just some illustrative examples. I do not believe that these sorts of offences are really appropriate for the new procedure, mostly because, as I have mentioned in my earlier speeches––it is important, so I stress it again––the consequences of conviction can still be extremely serious. The Government’s apparent justification for removing any human oversight in the procedure is that it will apply only to minor offences where the defendant faces no risk of imprisonment. But as Fair Trials points out,
“The absence of the risk of imprisonment should not, on its own, be a justification for trivialising criminal justice processes. Criminal convictions, even for minor offences (other than certain types of traffic offences), can have far-reaching and very serious implications on people’s lives and opportunities. The existence of a criminal record can, for example, seriously undermine someone's chances of finding employment, especially in certain sectors and professions (including nursing, social care, child-minding and teaching), accessing educational and training opportunities, obtaining certain types of insurance, or the ability to travel to certain countries. For those who are non-UK citizens, criminal records can affect the right to remain in the country.”
The Opposition believe that it is crucial that the procedure applies only to those offences for which convictions are unlikely to have these impacts on individuals’ rights and opportunities.
Justice has noted that it is likely that the new procedure
“as it currently stands, would act to incentivise individuals to plead guilty out of convenience, regardless of whether they have an arguable case. Without legal advice, this risk is all the more profound [and]… many will not fully appreciate the impact a conviction could have on their lives and future prospects.”
By limiting the new procedure to non-recordable offences only, we would ensure that automated convictions are limited only to the most minor offences, which do not appear on most criminal record checks. That would be a vital safeguard in the online conviction procedure.
I do not think we will be overly limiting the use of the new procedure if we include that further limitation. Between 40% and 45% of all criminal offence convictions each year are for non-recordable offences, so a significant proportion of cases could still be dealt with. I look forward to hearing the Minister’s thoughts.
James Cartlidge
This interesting amendment covers some of the questions from earlier. Clause 3 provides that only certain non-imprisonable and summary-only offences can be specified as eligible for the new automatic online procedure. Amendment 49 would restrict it further to non-recordable offences. That is straightforward enough.
I reassure the hon. Gentleman that the initial three offences proposed under the new procedure—failure to produce a ticket for travel on a train, failure to produce a ticket for travel on a tram, and fishing with an unlicensed rod and line—are non-recordable offences. In fact, the vast majority of eligible offences in scope are non-recordable, with only a couple of exceptions. There is currently no intention to extend the procedure to any recordable offences. Once we have reviewed how it operates, we might consider extending to other similar non-recordable offences, such as certain road traffic offences—for example, low-level speeding and driving without insurance. Clause 3 enables us to do so.
However, for an offence to be appropriate, it would have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Prosecutors would also have the discretion, based on the individual facts of any given case, to not offer the option of the procedure for an eligible offence if they felt it would not be suitable. Furthermore, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations, which would have to be approved by Parliament.
Alex Cunningham
That was a very interesting response. I think the Minister was confirming that what is in the amendment will, in fact, be the case going forward and that the Government will not seek to introduce any offences that would be recordable in the scenario I described. I ask the Minister why he does not accept the amendment if that is the Government’s intention. I invite him to intervene on me.
James Cartlidge
That is very kind of the hon. Gentleman. In this situation it is very standard to have a Bill with what is effectively a pilot. I would not quite say that it is formally a pilot, but it is effectively trialling these three non-recordable offences and will be reviewed.
However, as I said, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations that would have to be approved by Parliament. That is a very standard way of operating. We think that is more flexible. I do not want to invite a conspiracy that says there is a clear plan to move very soon to including recordable offences. As I say, there is currently no intention to extend the procedure to any recordable offences. We think that this way of legislating is perfectly standard. The amendment is not necessary.
Alex Cunningham
I am afraid that although I accept that the Minister is an honourable man, I would like to see this measure nailed in legislation so that a future Government cannot start to introduce recordable offences. There is no guarantee from what the Minister said that that will not happen. New Ministers can change things. The amendment will ensure that they cannot go beyond the guarantee that the Minister has offered today, and I intend to press it to a vote.
Question put, That the amendment be made.
Damien Moore (Southport) (Con)
It is nice to see you back in the Chair, Sir Mark. I just want to make some quick remarks in support of clause 3 stand part. First, it is about speeding up the system and tackling the backlog, which we have and have all heard about in the course of proceedings on the Bill. It is important that we get to grips with the backlog. Using online technology to help to remedy it is, I think, incredibly important, but I do not think it should be the only way we do that. If someone does not want it or have it, that should be up to them. Representing a constituency with a higher-than-average-age population, I certainly understand the fears and concerns that my constituents have when we talk about putting things online, because they always feel as though they will not be able to access them, and accessing justice is incredibly important.
The offences that we are talking about are summary offences. As we have heard, the provision will be used only in a small number of cases, whether it is the non-payment of a train or tram ticket or the possession of an unlicensed fishing rod or line. These matters have to be dealt with, and the provision for automatic online conviction—no pun intended—allows that to happen going forward. I do not think a physical court is needed for justice. We have seen that in the course of the pandemic. We have to remember that technology, in all aspects of life, is not going to go away.
I also support the clause because the defendant can choose. They do not have to do this, and rightly so. It is something that people can opt in to; they are not forced to do it. These days, many people may actually feel more comfortable in the online environment than they would in the traditional one. Although they have committed an offence and are pleading guilty to it, that does not mean that we should cause them unnecessary pain and anguish through going to a court, which they might feel very uncomfortable with. We have to think about protecting them in every way we can, while punishing them for the crime that they have committed.
As my hon. Friend the Minister mentioned before, it is important, particularly for those who are self-employed, who might have difficult work circumstances or who might have childcare issues to be able to access justice in this way. The Minister has already mentioned a number of the safeguards that are in place, and I thank him for that. Access to justice and the need to go to court are two very different things. I am pleased that the clause recognises that and I am very pleased to support it. I think that all of my constituents will be very pleased that our access to justice is not impeded by just having to go to court.
Andy Slaughter
I will be brief, Sir Mark. This has been a very interesting debate, and my hon. Friend the Member for Stockton North has put forward some points that the Minister has engaged with. I am not sure that we are entirely happy with the responses. Disposing of matters online, without going to court, is a significantly different way to do things and makes a lot of differences. Some of the examples that my hon. Friend gave included the ability to get advice, the ability to monitor the quality of proceedings—including the way that the prosecution puts its case—the accountability of the defendant, and justice being done in public. Yes, it is more convenient in some cases to be able to deal with everything online in the way that most of our lives are dealt with now, but criminal proceedings are an important event. There are now many fewer courts than there were, but the process of going to court and appearing there is significant. It concentrates the mind, and it is an event. It frames the offence, and it makes the defendant think about the consequences of their actions.
What most concerns me is the point about open justice, which is very easy to lose. I am conscious that this afternoon the Justice Committee is taking evidence on the issue in relation to an inquiry done by the Bureau of Investigative Journalism in which it tried to attend possession proceedings, which are ordinary in-chambers proceedings that go on every day in dozens of civil courts around the country. On a number of occasions, it was wrongly refused permission to proceed by the judge or the administrative clerk of the court, which is an increasing trend. It has been exacerbated by covid, because clearly much more has been done remotely during the pandemic. That may have been necessary, but when were are making changes to procedure, it is important not to throw the baby out with the bathwater. It is important not only that justice is done, but that it is seen to be done.
I am not persuaded that the clause has been sufficiently thought through at the moment. Therefore, I will listen to what the Minister and my hon. Friend may say in relation to that, but although the Government are aware of, and concede, the points that have been made, I do not think they have done enough to put safeguards in place. At the moment, I feel that we are not sufficiently reassured about the clause.
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairmanship, Sir Mark.
I will move on from what I said this morning about dealing with my constituents. Again, I go back to what people say to me about these things on a daily and weekly basis: the law is only any good if it is enforced. The one thing that people see time and again is that somebody is caught in the act of doing something, yet it can take months to get them to court and to get them dealt with. That is bad for two reasons: it says a negative thing to law-abiding citizens, but it also means that charges are held over somebody’s head for a long time, which is no good. It is no good for people to have cases hanging over them. Punishment should be quick, cases should be dealt with, and people should move on very quickly, especially with small misdemeanours. The whole point of the clause is to clear the backlog in the courts. I have mentioned fly tipping, which is a real issue, and I know there have been backlogs with getting such offenders into court and dealing with them. The clause will expediate the court process and get swift justice to those who need it.
Before I was elected to this place, I got paid when I turned up to work. Other Members have referred to builders, plumbers and electricians, who do not have the luxury that a lot of people have. If they do not turn up for work, they can lose a day’s pay, which can be hugely costly to them, especially in these times. If they have made a small error, being able to deal with it very quickly online, maybe when they get in in the evening—saving them a day in court, which would increase anxiety for people—will be welcomed.
Alex Cunningham
I will be brief and will not repeat the points made by my hon. Friend the Member for Hammersmith on open justice and the requirement for safeguards. I have two points to make, which relate to our previous debate. First, although I feel my trust in the Minister building this afternoon as time goes on, sadly I do not trust a future Conservative Minister who may well decide to use the powers that the Minister is attempting to take to himself to do things that I would hope none of us would approve of, through having a series of online cases that could lead to recordable offences. That could have an impact on people’s lives. For that reason, it is important that we do not support the clause.
Secondly, there is the issue about the information that defendants have. The Minister was at some pains to point out what is already in the Bill. The fact that vulnerable people may not get the support, or not even be identified if they use this particular system, is of great concern. That is the second reason, in addition to those that my hon. Friend the Member for Hammersmith mentioned, why we will not support the clause.
James Cartlidge
Again, some very interesting points have been made. I was only appointed not much more than a month ago—
James Cartlidge
It is interesting to have two shadows at once—I should probably take it as a compliment. It is interesting that the hon. Member for Hammersmith said that he would wait until he had heard my remarks and those of the hon. Member for Stockton North before taking his position. I hope the hon. Member for Stockton North has persuaded his hon. Friend. It is an interesting position, but there we are.
My hon. Friend the Member for Southport gave a very good speech. As he said, the physical court is not needed for justice in many ways these days. Of course, it is still crucial for many aspects of law. The best example is those big Crown court cases with a jury. There is no getting away from that point. My hon. Friend the Member for Don Valley mentioned the backlog. It is absolutely crucial that we remember that by increasing the use of digitisation, we free up resource elsewhere, effectively streamlining through the whole system.
We are not saying that this measure alone will clear the backlog—of course it will not, that is absurd—any more than the 180 days taken by Cart judicial reviews would somehow of themselves be the silver bullet to solve the backlog. I was obviously not saying that. It is the accumulation. If, for example, using this procedure causes less pressure or fewer cases to be heard physically in the magistrates court, the magistrates court in turn can hear more triable either-way cases coming from the Crown court. The whole point is a process to reduce the pressure and free up space where it is needed most, which is in those crucial cases in the Crown court, where the backlog is most severe.
We have gone through the main points and the safeguards in great detail, so I am not going to speak at great length. This is about choice. If a defendant wishes to plead not guilty or otherwise decides that they wish to have a hearing in a traditional courtroom or their case considered by a magistrate under the single justice procedure, the current arrangements will apply. By introducing this new online process for dealing with the most straightforward and minor offences, the measure will save court time, allowing magistrates to focus on the more serious cases and help deliver swifter justice. That is the essence of our case.
I have one final point to make, which is important to have on the record. I thank the Scottish Government for their support for this measure and note the legislative consent motion that they have approved. However, the motion contained within it reserves clauses that in the Government’s view do not engage the legislative consent motion process.
Question put, That the clause stand part of the Bill.
Alex Cunningham
I beg to move amendment 51, in clause 4, page 9, line 34, leave out “16” and insert “18”.
This amendment would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18.
I will be relatively brief on clause 4, which extends the existing “pleading guilty by post” scheme in section 12 of the Magistrates’ Courts Act 1980. Under the provisions in the Bill it would apply to defendants who have been charged with a summary offence at a police station. If the defendant chose to make use of the written procedure, the court would then be able to try the case as if the defendant had pleaded guilty in court, but without the defendant—or the prosecution—having to attend. From 1957, when it was introduced, until 2015, the section 12 procedure was used by all police forces to prosecute mostly traffic offences, although it was also used for some other minor offences. Around 50% of all court cases were dealt with under it. Following the introduction of the single justice procedure in 2015, the section 12 procedure became relatively rare; it is still used for some cases that are not eligible to be prosecuted under the single justice procedure, for instance because the prosecuting body is not eligible to use it or there is a victim involved in the case. Given its current rarity and the limited likelihood of its future use now that the single justice procedure is available, I cannot really see the benefit, or indeed the point, of the extension of section 12, but the Opposition are not necessarily opposed to it.
Amendment 51 is straightforward; it would simply raise the age of defendant for which the procedure can be used from 16—that is, when the defendant is a child—to 18, when the defendant is an adult. I understand that under section 12, children aged 16 to 17 can be prosecuted in the youth court for summary-only offences under the section 12 procedure. Furthermore, under the same legislation, children under 16 can also be prosecuted for summary-only offences under the section 12 procedure, but only if there is an adult co-defendant in the case. However, I believe that the procedure has never actually been used in this way. Just because in 1980 it was decided the section 12 procedure should be able to apply to 16 and 17-year-olds, it does not mean that we have to extend that provision 40 years later. Just as the Government have decided not to extend the provision for children under 16 when there is no adult co-defendant, it could also remove 16 and 17-year-old children from the process altogether.
As it is drafted in clause 4(3), proposed new section (2A)(b) of section 12 allows for a magistrates court not only to accept guilty pleas from children aged 16 and 17 in writing, but to try, convict, and sentence them on papers. Following the accused child’s guilty plea, it would allow the court to sentence them at a court hearing in their absence. Other parts of the Bill, namely clauses 3 and 6, recognise that remote procedures are available only for accused adults—that is, those aged over 18—taking into account the fact that children need additional support and assistance to ensure effective participation. In addition, I understand that the provisions under clause 13, which mandate the involvement of a parent or guardian in proceedings involving a child, will not apply to the entry of a guilty plea by post by a 16 or 17-year-old under section 12. That also strikes me as odd, and I would be grateful if the Minister could clarify the reasoning behind it. To us, it is not clear why the threshold must remain at 16 for this clause.
James Cartlidge
I should point out for the record, as I spoke to him privately, that I did discuss that intervention from the Chair of the Justice Committee, and explained to him what I am about to explain now.
Amendment 51 would raise the age of eligibility for the section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18 years of age for cases where the defendant is charged at a police station. The section 12 procedure has been available as a suitable means of summary-only prosecution against defendants aged 16 and over since 1957, as I believe the hon. Member for Stockton North rightly said. I am not aware of that having raised any particular issues of concern for child defendants during that time. In a case where the defendant is summonsed or charged by post and intends to plead guilty, the section 12 procedure provides the option to do so by post rather than having to attend court. The subsequent hearing will still take place in open court and the defendant can still attend if they wish, so this is not about online procedure as such.
This procedure is primarily used for minor offences, such as driving without due care or littering, and has seen a sharp decline since the introduction of the single justice procedure. Once again, the hon. Gentleman noted that point. The purpose of clause 4 is to ensure that prosecutors can also offer that long-established procedure for suitable cases where a defendant is charged in person at a police station. That will maintain the same age criterion that exists for prosecutions initiated by summons or postal charges for 16 to 18-year-olds. Prosecutors will decide whether it is appropriate to provide a defendant with the option to proceed with the section 12 procedure, and summons and postal requisitions served on children will always be sent to their parent or guardian, which will include details about the section 12 procedure if it has been offered.
When a child is arrested and held in police detention, existing primary legislation also requires that a parent or guardian must be notified of that as soon as possible, and legislation will continue to enable a youth court to require a parent or guardian to attend during all stages of the subsequent proceedings at court where that is deemed appropriate. The amendment would create confusion by applying different rules to a well-established procedure simply because the defendant is charged in a different way. It also ignores the safeguards in place to ensure that the rights of children are protected. I therefore urge the hon. Gentleman to withdraw the amendment.
Alex Cunningham
I am grateful to the Minister for his response. I make no apology for always raising every issue in relation to children when the Government are trying to convert them into adults. There are many more serious examples of that in the Police, Crime, Sentencing and Courts Bill, which is going through in the other place. The Minister will not be aware of this, but I spoke at length in the Committee on that Bill against the creation of adults from children. While I accept what he says about this being a relatively minor example in comparison to elsewhere, it is important that the Government recognise that children are children, and not adults. I worry at times that we will see childhood further eroded in matters of justice going forward.
James Cartlidge
Just for clarity—this is what I explained to the Chair of the Justice Committee—I can quite understand that, at face value, it looks from the Bill as if this is uniquely being set at the age of 16 compared with the automatic procedure, which is set at 18. Of course, they are very different things, so I hope the hon. Gentleman appreciates that it is purely a consistency matter within a well-established procedure—although admittedly, within the Bill next to the other part, it is easy to see why these questions have been raised.
Alex Cunningham
That is exactly the reason why I will not push the amendment to a vote, but I make the point again that we cannot go forward in this country’s justice system moving more to converting children into adults when they are 16 or 17 years of age. I worry that we will see further proposals that will be far more damaging to young people in the future, so I will continue to prosecute this matter, and the Minister will get very bored of me over the coming months as I do so. In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
I will give a short exposition, because it is important to clarify the point that I emphasised in my last intervention. Section 12 of the Magistrates’ Courts Act 1980 is a long-established procedure, providing defendants with the option to indicate a guilty plea in writing to a summary-only offence. In such cases, defendants can also agree to be tried, convicted and sentenced to a fine at a court hearing, which neither they nor the prosecution have to attend. However, a magistrates court cannot impose a custodial sentence without bringing the defendant before the court. Nor can they impose a driving disqualification in the defendant’s absence without adjourning the case and giving the defendant an opportunity to attend a hearing.
Under the existing law, the procedure can only be applied to defendants whose prosecution is initiated by way of a summons or postal requisition. Clause 4 will change that, so that it can also apply when a defendant is charged in person at a police station and bailed to attend court for their first hearing. In circumstances, for example, where a defendant decides to plead guilty by post without having to attend the hearing, clause 4 also provides the court with a power to discharge the defendant from the need to surrender on bail. That means that prosecutors will be able to apply the procedure to suitable cases that would have otherwise been excluded simply because of the way in which the prosecution was initiated.
In all cases, opting to plead guilty in writing and be convicted and sentenced in absence will continue to remain entirely voluntary for defendants. The police and other prosecutors will continue to have the discretion to decide whether it is appropriate to apply the procedure to any case. Furthermore, all the current restrictions on the imposition of custodial sentences and driving disqualifications will still apply. Therefore, a defendant’s appearance at a traditional court hearing will always be available where necessary, or if the defendant desires it. Clause 4 is one of a number of measures the Government are bringing forward in the Bill to simplify criminal procedures and make our courts more efficient for its users.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Extension of single justice procedure to corporations
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss New clause 1—Review of the Single Justice Procedure—
“(1) Before the Commencement of this Act, the Secretary of State must commission a review and publish a report on the effectiveness of the Single Justice Procedure.
(2) A review under subsection (1) must consider—
(a) the transparency of the Single Justice Procedure in line with the principle of open justice,
(b) prosecution errors under the Single Justice Procedure and what redress victims of errors have,
(c) the suitability of the use of the Single Justice Procedure for Covid-19 offences,
(d) the proportion of defendants who do not respond to a Single Justice Procedure Notice and the reasons why defendants do not respond,
(e) the suitability of the Single Justice Procedure for people living with disabilities or neurodivergent conditions,
(f) the possible introduction of training for prosecutorial bodies who use the Single Justice Procedure on identifying and supporting individuals with vulnerabilities or disabilities.
(3) The Secretary of State must lay a copy of the report before Parliament.”
Alex Cunningham
We have already had a number of debates on our concerns about the extension of some of the powers. I have talked about the single justice procedure in detail, but it is now appropriate to give more direct and constructive criticism of that particular procedure. It is no good recognising the problems of the procedure in discussions of other clauses without any recourse to try to make improvements to the procedure.
I have become quite interested in the workings and failings of the single justice procedure in recent months, as I am sure the Minister is aware. I have raised my concerns with his predecessor at the Dispatch Box in Justice questions and requested a meeting with his predecessor to discuss the use of the procedure for covid offences, which the Minister’s private office has assured me is still in the works once his diary settles down a bit.
I thank Transform Justice, Fair Trials, and Big Brother Watch for the interesting and helpful briefings and discussions we have had on the topic in recent months, and I thank APPEAL and others who have researched and raised the alarm about elements of the SJP. For those who are not familiar with the procedure, APPEAL helpfully outlines it in its briefing “Conveyor Belt Justice”, which I will quote from at length to help Members better understand it:
“Summary offences which are not punishable with imprisonment may be tried by a single magistrate, with a legal adviser available, under what is known as the single justice procedure…Relevant offences include common assault and battery, truancy, non-payment of TV licenses and, from July 2020, offences under emergency Coronavirus legislation. Legal aid is not available to people charged with these offences.
In 2020, SJP prosecutions accounted for 47% of all criminal prosecutions in England and Wales.
Those prosecuted under the SJP receive a notice in the post and are asked to submit their plea within 21 days online or by post.
If someone receives a notice and does not respond, or if they respond and plead guilty, they are automatically convicted on the papers, in closed court. If no evidence is submitted of their financial circumstances, they are assumed to be able to afford the standard fine and costs, which can amount to hundreds of pounds.”
I am sure my fellow Committee members will agree that is a useful summary.
The new clause would require the Secretary of State to undertake a review of the single justice procedure and lay it before Parliament. The review would have to consider a number of issues with the procedure that have been raised by organisations working in the justice sector over the years.
The first issue the review would have to consider is how the SJP complies with open justice, which we knocked around a bit earlier in the day. In an earlier speech, I referred to the difficulties that Tristan Kirk has had accessing information on such cases. In its inquiry on covid-19 and the criminal law, the Justice Committee said that a lesson learnt from the use of the single justice procedure in relation to covid-19 offences was
“that the Ministry of Justice should review the transparency of the single justice procedure and consider how the process could be made more open and accessible to the media and the public.”
I know the Minister has commented on that, but I hope he can go a little further. The Opposition would echo that particular call. With almost half of criminal cases going through the procedure, the Government need to do more to ensure that justice is still seen to be done.
The second matter that needs to be looked at is prosecution errors under the SJP and what redress the victims of those errors have. In the last year, the error rate in the SJP was around 10%, according to a written answer that the Minister recently gave to my right hon. Friend the Member for Tottenham (Mr Lammy), in which he said:
“A review of Single Justice Procedure…cases dealt with between 1st September and 30th October 2020 showed that legal advisers and justices identified errors in 10% of cases. The errors are not caused by the type of proceedings; work done over the summer of 2020 suggested that the primary cause was the volume of regulations and the constant amendments, combined with the speed of introduction and the conditions in which officers issuing fixed penalty notices had to work. In the autumn of 2020, work was done with police forces and justices’ legal advisers to reduce the errors. Anecdotally, and from limited data, the error rate with the new round of SJP proceedings appears to be lower than last year. As the regulations ceased in the summer, the numbers of Covid SJP cases are set to decline.”
I share the Minister’s hope that the error rate will decline. An error rate of 10%, when almost half of all the criminal cases in the country are being dealt with under the SJP, is quite something. It certainly is not justice at its best.
James Cartlidge
The hon. Gentleman is engaging—he is an engaging fellow and I am engaging with him. I am more than happy to do that. I understand his request for a meeting. I would be more than happy to meet him to discuss some of the questions he has raised about the single justice procedure. If I do not answer them in my reply, I hope that we can go into them at that juncture. That is important.
The new clause would require a review and report into the effectiveness of the single justice procedure before the Act could be commenced. The single justice procedure is a more proportionate way of dealing with straightforward, uncontested, summary-only non-imprisonable offences, which almost exclusively result in a financial penalty. Previously in such cases, defendants tended not to engage at all and trials often went ahead without them. Many of these cases reach the court simply because the defendant has ignored other more informal ways of resolving the matter, such as a fixed penalty notice. We introduced this more accessible procedure as a way of encouraging defendants to engage with the court process.
It is a matter for prosecutors to decide whether it is appropriate to prosecute a defendant under this procedure, but various safeguards are built into the process. All defendants can veto the procedure and choose a hearing in open court. In addition, the magistrate can decide to refer the case to open court if they think that it cannot be dealt with appropriately using the procedure. Defendants who choose to use the procedure have access to support throughout the process, either by telephone or face to face. The single justice procedure written notice and online process have been designed with input from users and a wide range of organisations at public user events. Her Majesty’s Courts and Tribunals Service is constantly working to improve the documentation and has developed a clearer and more concise single justice procedure notice and information pack, copies of which I will share. That was recently piloted and is now being implemented.
There is a specific question relating to disability and accessibility needs in the form. To my knowledge, the single justice procedure does not in practice disadvantage any particular group. Defendants who choose to opt into the single justice procedure will be carefully guided through the process and will have access to both telephone and face-to-face support. For those who decide to proceed with a hearing, the necessary adjustments will be made at court in the usual way.
I am aware that concern has been raised that the single justice procedure lacks transparency. However, the criminal procedure rules oblige courts to give certain additional information on cases upon request from the media and other interested third parties. This applies to single justice procedure cases as well. To improve transparency arrangements, a list of pending SJP cases is published each day on a common platform that is available to the public online.
I am also aware that concerns have been raised about errors, as they were by the hon. Gentleman. Errors can occur in any system and there are processes in place to correct them. I am not aware of any evidence to suggest that the error rate is higher under the single justice procedure than under ordinary court procedures. As with all types of cases that magistrates courts deal with, if an error is made by the court, whether upon conviction or sentence, the court will always notify the defendant and correct it, following the case being reopened. Similarly, the defendant has the automatic right of appeal to the Crown court against conviction and sentence. If a defendant was unaware of the proceedings, they are entitled to make a statutory declaration that revokes the conviction and recommences the proceedings.
Given the safeguards in place and our commitment to continually review and improve the single justice procedure processes––
Alex Cunningham
The Minister appears to be coming to the end of his remarks and I want to press him on the unlawful convictions under the coronavirus legislation. Is the Department moving to ensure, or at least to encourage, proactivity in getting these people’s convictions removed?
James Cartlidge
One reason that I am more than happy to meet is that we can go through more detail. There are a range of issues here that I would need to discuss with the hon. Gentleman.
On the new clause, I can see no reason for a formal evaluation and certainly not one that would delay the implementation of all provisions in the Bill. I therefore urge the hon. Gentleman to withdraw the new clause.
Clause 5 makes it clear in law that the single justice procedure can be used to prosecute legal persons such as corporations as well as individuals. Often, corporations are charged with offences that are suitable for the single justice procedure, such as lorry overloading. The clause ensures that a corporation can benefit in the way that an individual can from the speed and convenience of having such cases dealt with under this procedure.
Alex Cunningham
I appreciate the Minister’s response on new clause 1. We can all accept that the SJP is not perfect. We are trying to persuade him of the need to look at data and consider how well it is working, when it is not working and where the problems are. I have illustrated where I think some of them are. The Minister is only a month into his role and is doing a grand job so far. It is important that these issues are explored and not just shoved to one side. I am grateful for his offer to meet and I am sure that will happen.
I will just make one final point on transparency. It needs to be better. There are some good things happening already, but the Minister recognises that transparency is an issue and I look forward to seeing the changes that he might make in the future. I have already covered the issue of unlawful convictions.
Andy Slaughter
Listening to this debate, I am reminded that I was on the Bill Committee when the SJP was first introduced. A lot of these concerns were raised at the time and the fact that we are still talking about them now means that there is some way to go. It should also make us wary about further innovations that could compromise justice being done openly, as happened before.
I mentioned the investigation today and it has provoked the Master of the Rolls to write to all civil judges to remind them about the importance of allowing media access. Recently, we have seen the head of the family division taking very important strides to open up family courts, which have often been a closed book for so long.
We should be doing more to encourage open justice and therefore I think we should be aware of these issues. I fully support what my hon. Friend has said in relation to these matters and his caution, even if he trusts the Minister more than I do.
Alex Cunningham
I am grateful to my hon. Friend for those comments. Sometimes, it seems that we end up talking about the same things in every single Bill Committee when it comes to justice. I remember well the days on the Legal Aid, Sentencing and Punishment of Offenders Bill Committee, when my hon. Friend was leading for the Opposition. There were so many places where we felt that more information or data needed to be recorded to ensure that the justice system was working correctly.
However, as I said, on this occasion I am content not to press the new clause, and I look forward to working with the Minister in the future.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Written procedure for indicating plea and determining mode of trial: adults
Alex Cunningham
I beg to move amendment 52, in clause 6, page 11, line 10, at end insert—
“(c) the court has been provided with a physical and mental health assessment of the accused confirming that the written procedure will not impede their ability to understand or effectively participate in proceedings”.
This amendment would require that all accused persons whose cases are considered for the written or online procedure are subject to a health assessment, and only those who are considered not to have vulnerabilities or disabilities are able to indicate their pleas remotely.
The Chair
With this, it will be convenient to discuss amendment 56, in clause 6, page 18, line 5, at end insert—
“(4) The Secretary of State must, before the changes to the written procedure for indicating plea and determining mode of trial are introduced, conduct a pilot in two police force areas to evaluate the impact of the changes on effective participation in the justice process. The evaluation should include—
(a) the proportion of defendants with disabilities affected by the changes;
(b) the impact on the effective participation of all defendants including those with disabilities; and
(c) the effectiveness of reasonable adjustment measures”.
This amendment would require the expansion of online pleas and online indication of pleas to be piloted in two areas of England and Wales, and the pilot evaluated with published results, before any further changes are introduced.
Alex Cunningham
Clause 6 adds new sections to the Magistrates’ Courts Act 1980 that enable defendants to engage with the plea before venue and allocation procedures in writing, rather than in court. The new sections apply in cases involving a defendant aged 18 or over who has been charged with an either-way offence. This effectively creates a new pre-trial allocation procedure, whereby an individual will be able to indicate a plea in writing for all summary-only, indictable-only and triable either-way cases. This would remove the need for a defendant to attend an allocation hearing in person, as is currently required. The provisions under the clause are not mandatory and a defendant could attend a physical hearing if they wished to do so.
As with other measures in the Bill, the Opposition are not necessarily completely opposed to clause 6, but we need further reassurance from the Minister and possibly amendments that would introduce safeguards into the procedure. That is because, as the Minister will be aware, deciding how to plead and deciding where a case may be heard can have significant consequences for a defendant. One example would be if a defendant chooses to proceed to the Crown court in a triable either-way offence. They may receive a harsher sentence than in a magistrates court, because of the greater sentencing powers of the Crown court.
Decisions regarding plea and the venue of criminal trials are crucial ones that determine the course of the trial and have serious implications for the rights of the defendant, which can be extremely difficult to reverse. Fair Trials states:
“In particular, pleading guilty amounts to a waiver of the accused’s right to a trial, and all the defence rights that are related to trial processes. Although the Bill purports to enable accused persons to only make an ‘indication’ of their plea, which can later be revoked, Fair Trials has doubts that many defendants would do this, unless they benefit from effective legal assistance.”
I will speak further about legal assistance when we discuss amendments 53, 54, and 55.
Fair Trials goes on to say:
“Moreover, the right to a public hearing with the presence of the accused person is of fundamental importance not only to the defence, but also to the public. First appearances in court are crucial stages of the criminal justice process, where important decisions regarding criminal cases and the rights of the accused are made. Clause 6 will mean that many of these hearings will effectively take place in secret....it is crucial that there are sufficiently strong safeguards to ensure that defendants entering their pleas online, or via written procedures make adequately informed decisions.”
The Bar Council believes that hearings that involve indicating plea and determining mode of trial should remain as in person. It explained in its briefing ahead of Second Reading:
“Moving to a written procedure would ultimately impede access to justice for defendants who are often vulnerable due to a range of additional needs, and a disproportionate number of whom (relative to the overall population) have literacy issues, and some of whom may not speak or read English as a first language… Any criminal charge is serious, an either way offence self-evidently so. Moving to a written procedure for an indication of plea and mode of trial increases the probability of defendants, even if entitled to legal advice, suffering a disadvantage. Consequently, there is good reason to question the fairness of such written procedures and we do not believe therefore that it would be in the overall interests of justice or efficiency to adopt such a new approach... Further, the early plea and mode of trial hearings are some of the most procedurally complex in the criminal justice system. In order to ensure that defendants are able properly to navigate the various issues which such hearings present, it is essential that they are able to secure representation at the moment at which they are required to make—and inform the court of—key decisions.”
The Bar Council also referred to the crucial role that criminal solicitors and junior barristers often play in the magistrates court in referring vulnerable defendants to support services that can offer them help. That possible moment for intervention is clearly lost when such hearings are no longer in person.
That is a serious catalogue of concerns levelled against the clause. I appreciate that it is not the Minister’s intention to cause those potentially extremely adverse consequences, but the reality is that potentially many thousands of defendants will face those and suffer worse case outcomes.
The Opposition understand the concerns and share the reservations of Fair Trials and the Bar Council, but we first seek assurances from the Minister that appropriate safeguards will be put in place. Amendment 52 would require that all accused persons whose cases are considered for the written or online procedure are subject to a health assessment, so that only those who are considered not to have vulnerabilities or disabilities are able to indicate their pleas remotely. That is for the same reasons that I outlined in my speech on amendment 57 to clause 3, so I will not rehearse all the arguments again. We are again concerned that the Bill does not address the risk of vulnerable defendants indicating pleas with insufficient knowledge and understanding of the implications. We therefore seek some form of screening safeguard to be put in place.
Amendment 56 would require the expansion of online pleas and online indication of pleas to be piloted in two areas of England and Wales, and the pilot evaluated with published results, before any further changes are introduced. Transform Justice’s briefing notes suggest that
“encouraging online pleas could act as a driver to lack of legal representation, worse outcomes, and exacerbates efficiency issues encountered later in the justice process such as difficulties obtaining full disclosure from the prosecution.”
The Equality and Human Rights Commission said in its briefing that the provisions for pleas in writing
“risk the ability of people with certain protected characteristics to effectively participate in criminal proceedings”.
Given those serious concerns about the impact of the proposals on effective participation in the justice process, the changes should be piloted in two police force areas and an evaluation of the costs and impact of the changes, including on disabled people, should published before wider roll-out is considered. I am interested to hear what safeguards the Minister has considered for the new allocation procedure for adult defendants. As I have said, plea and allocation hearings can have major impacts on case outcomes, and I am sure he agrees that it is vital that we get the procedure right before it is rolled out across the country.
James Cartlidge
The amendments relate to vulnerable defendants using the provisions in clause 6 that allow adults to indicate a plea online. To be clear, I share the concern of the hon. Member for Stockton North to ensure that vulnerable defendants, including those with disabilities, are able to engage effectively with online procedures. That is why we have built a number of safeguards into all the criminal procedure measures in the Bill, including this one.
Amendment 52 would ensure that a court cannot invite a defendant to indicate a plea online unless it has been provided with a physical and mental health assessment indicating that the online procedure will not impede the defendant’s ability to effectively participate in proceedings. It will be a matter for the court, in any case, to decide whether it is appropriate to invite the defendant to indicate a plea online before their first hearing. Not all defendants will be offered the option of engaging with the court online before their first hearing, and the courts will do so only where they consider it appropriate. Defendants will be under no obligation to accept an invitation to proceed online and can choose to discuss these matters at a traditional court hearing if they so wish.
Where a defendant fails to engage online, the proceedings will simply default back to existing court-based procedures. Those who do choose to indicate a plea online will be given information about the procedures available, how they work, the consequences if followed, and the need to obtain legal representation. They will only be able to enter a plea and allocation decision through their legal representative. As they do currently, legal representatives can help to identify if the defendant has any vulnerability that would mean that they cannot understand the process. Furthermore, any online indication of plea will remain just that—an indication. A defendant will be able to withdraw it. They still have to appear before a court to enter a binding plea where the court will be able to assess the extent to which they are making an informed decision. The court can set aside earlier steps in proceedings where it decides that a defendant has not made an informed decision when indicating a guilty plea online, and that indication of guilt cannot then be admitted as evidence against them in later proceedings.
Amendment 56 would require a pilot of the online indication of plea procedure to be undertaken and evaluated before the procedure is implemented to assess the impacts on defendants and, in particular, vulnerable defendants. I share the concerns of the hon. Member for Stockton North about impacts on defendants but do not agree that a pilot is necessary. We have undertaken an equality impact assessment and have built a number of safeguards into the online procedures to protect vulnerable defendants. As with all criminal procedures, the operation of this new procedure will be closely monitored by the Criminal Procedure Rule Committee. I have already set out the safeguards we have built into these procedures so that defendants will not be disadvantaged by engaging with the court in this way, and to ensure that any impacts are positive in minimising the stress of having to attend court unnecessarily. I therefore urge the hon. Gentleman not to press the amendments.
Alex Cunningham
The crux of this matter is the defendant making an informed decision. The Minister referred to that. Coupled with that is the need for appropriate legal advice. The Minister also alluded to that. I do not know how we ensure that the person understands that they need to seek legal advice before participating in this process. However, given what the Minister has said, I am content and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 53, in clause 6, page 11, line 10, at end insert—
“(2A) Subsection (3) only has effect where a magistrates’ court is satisfied that the accused has engaged a legal representative, who is responsible for responding to the charge and giving any written indication of plea.”
This amendment would mean that defendants must be legally represented in order to indicate a plea in writing.
The Chair
With this it will be convenient to discuss the following:
Amendment 54, in clause 6, page 11, line 29, after “plea” insert “and consequences of pleading guilty”
This amendment will require that an accused person informed about the practical consequences of pleading guilty, such as gaining a criminal record and what that may mean for the defendant.
Amendment 55, in clause 6, page 11, line 36, at end insert—
“(4A) The prosecutor must obtain proof of receipt by the accused of the information outlined in subsection (3)”.
This amendment would require prosecutors to obtain proof of receipt of the information relating to written pleas sent to defendants.
Alex Cunningham
Amendment 53 would mean that defendants must be legally represented in order to indicate a plea in writing. As I said in my previous speech, early plea and mode of trial provisions are among the most procedurally complex in the criminal justice system. The Opposition therefore agree with the organisation Justice that, as a minimum safeguard, defendants must have the opportunity to receive legal advice and assistance prior to indicating a plea or trial venue. Allocation decisions can currently be taken at court with the assistance of a duty solicitor.
As Justice set out in its 2016 response to the Government consultation, “Transforming Our Justice System”, in a physical court there is a network of informal assistance available for people that can help explain procedure and guide towards legal assistance where necessary—from the usher, to the justice’s clerk, the barrister waiting for their case to be called, or the magistrate if the case appears before them. This informal assistance can act as an important safeguard and support mechanism for those going through the often difficult and confusing process of being engaged in our justice system, and would be unavailable, on the face of it, for those able to engage in the new allocation procedure remotely.
The Opposition welcome the clarification from the Government, in the courts fact sheet accompanying the Bill, that defendants will
“not be able to access the online procedure for indication of plea or trial venue allocation decision directly”,
because submissions would be made through the common platform, for which defendants
“will need to instruct a legal representative to act on their behalf who will of course ensure they fully understand the process and will be able to identify any vulnerabilities.”
I am glad that the Minister recognises how crucial legal support and advice are for decisions concerning whether to indicate a plea before venue and deciding where the case should be heard, either in a magistrates court or the Crown court.
James Cartlidge
The amendments would all add further safeguards to clause 6, which allows adults to indicate a plea online. As I have said, I share the concerns of the hon. Member for Stockton North that defendants can engage effectively with online procedures. In the previous group of amendments, I set out the numerous safeguards included in the provision, which also apply here.
Amendment 54 would require that defendants who are given the option to provide an online indication of plea for an either-way offence are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. The hon. Member for Stockton North is right that the prospect of a criminal record is not something that should be taken lightly. Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea. I must stress again that this is an indication of plea and is not binding. That means that a defendant will have to appear at a subsequent court hearing to enter a binding guilty plea before they can be convicted. The court will need to be satisfied that the defendant has made an informed decision.
Defendants will also be able to withdraw an indication of guilty plea, and that previous admission of guilt cannot be used against them. They will require a legal representative to engage online, who I would fully expect to explain the serious implications of pleading guilty at court and getting a criminal record. If the courts decide that it would be appropriate to provide any additional information to defendants invited to plea online, the legislation enables this to be done under the criminal procedure rules. The Criminal Procedure Rule Committee was created by Parliament precisely for the purpose of making detailed rules of procedure for criminal courts in a flexible way. Delegation to the Committee is widely accepted as appropriate for this sort of secondary legislation.
Amendment 53 would provide that a court cannot invite a defendant to indicate a plea online unless the court is satisfied that the defendant has engaged legal representation. It is our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. As I have said, they will already require legal representation in order to indicate a plea online. That is because the online procedures are made possible through the common platform, which is not accessible to defendants.
Amendment 55 would require prosecuting agents, such as the Crown Prosecution Service, to obtain proof that a defendant had received all the necessary information sent to them by the court about the new written procedure for indicating a plea online for an either-way offence. There are already procedures in place to ensure that information is sent by the court securely and to the correct correspondence address of the intended recipient. These procedures will continue to be followed as normal. I appreciate that there may be occasions when an invitation does not reach the recipient, but that will not disadvantage any defendant. After all, it is up to a defendant if they want to provide an indication of plea online. If they do not—because they choose to ignore the invitation or never received it in the first place—the proceedings will simply begin, as they do now, at the scheduled first hearing. The absence of a response will not be held against them.
I remind the hon. Member for Stockton North that it is also our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. They will need to do so in order to indicate a plea online. Their legal representative will be qualified to ensure that they understand the procedure, have all the information they need to make an informed decision and understand all the consequences that come with it. It would be disproportionate and inefficient to mandate the prosecutor to obtain proof of receipt for each and every invitation that was sent by the court, especially when we have all these safeguards in place, paired with the fact that some defendants will have absolutely no intention of engaging online, opting for a traditional first hearing instead.
Alex Cunningham
I have a simple question about receipt of the charge. Through the post office, people can have a recorded delivery and actually sign for a letter. Why are the Government resisting that? They would know that the person had definitely received the charge, because there would be a signature saying that they had.
James Cartlidge
There are pluses and minuses to that approach. To repeat the point I made earlier, if they never received the notice in the first place, the proceedings would simply begin, as they do now, at the scheduled first meeting. In that sense, there is not a fundamental difference. I think I have covered all key points on this group of amendments and I urge the hon. Member not to press them.
Alex Cunningham
I will not detain the Committee long. I listened carefully to what the Minister said about doing everything possible to make sure that the defendant accesses legal support. I would prefer to see that on the face of the Bill to make sure that it definitely happens, so I will push amendment 53 to a vote but not press amendment 54 or 55.
Question put, That the amendment be made.
James Cartlidge
I beg to move amendment 1, in clause 7, page 18, line 10, leave out lines 10 to 20 and insert—
“(1) This section has effect in the circumstances set out in section 17A(7) (indication of not guilty plea by accused at hearing), 17B(2)(d) (indication of not guilty plea by accused’s representative at hearing) and 22(2B) (scheduled offence found at hearing to be triable either way after indication of not guilty plea).”
This amendment and Amendments 5, 6, 7, 10, and 11 remove drafting inconsistencies to do with the applicability of section 17BA of the Magistrates’ Courts Act 1980 as inserted by clause 7.
The Chair
With this it will be convenient to discuss the following:
Government amendments 5 to 7, 10 and 11.
Clause stand part.
James Cartlidge
This group contains minor and technical amendments to clause 7 and schedule 2 to the Bill, as well as the clause stand part.
When a defendant indicates a not-guilty plea to a triable either-way offence at magistrates court, the court must embark on the allocation decision procedure to establish whether the case should be tried in a magistrates court or at the Crown court. The sequence of this procedure is dictated by primary legislation and currently means that if the court decides that a summary trial at magistrates court is suitable, it must have deliberated and reached that decision before asking the defendant if they want to overrule it and elect for a jury trial at Crown court instead. Sir Brian Leveson, the former president of the Queen’s bench division, highlighted the inefficiency of the current sequence in “Review of Efficiency in Criminal Proceedings”, stating:
“The allocation procedure could be conducted more quickly if the defence was invited to indicate at the outset if the accused intends to elect Crown Court trial.”
Clause 7 will provide defendants with the opportunity to elect for a jury trial at Crown court before the court embarks on the allocation decision procedure. It will help to save valuable court time and resources by ensuring that time is not spent considering the suitability of a case for summary trial where the defendant intends to elect for jury trial in any event. The Government amendments to the clause are minor and technical in nature, and amend the drafting to ensure that clause 7 can apply consistently in all suitable circumstances. They will have no practical effect on policy.
Amendment 1 agreed to.
Clause 7, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Animal Welfare (Kept Animals) Bill (Second sitting)
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
This afternoon, we will hear first from Minette Batters, President of the National Farmers Union, who will appear virtually; Peter Stevenson, chief policy adviser for Compassion in World Farming, who will also appear virtually; and Rob Taylor from the National Police Chiefs’ Council’s livestock priority delivery group. We have until 3 pm. Could the witnesses please introduce themselves for the record?
Minette Batters: Thank you so much. Minette Batters, President of the National Farmers Union.
Peter Stevenson: Peter Stevenson, chief policy adviser for Compassion in World Farming.
Rob Taylor: Good afternoon. I am Rob Taylor, the all-Wales wildlife and rural crime co-ordinator for the police. I am also the National Police Chiefs’ Council’s chair of the livestock priority delivery group.
The Minister of State, Department for Environment, Food and Rural Affairs (Victoria Prentis)
Q
Minette Batters: Thank you for the opportunity to give evidence to the Committee. We respect the Government’s manifesto commitment on live animal exports, but our main concern is the double standards of the approach. If we take the Australian trade deal as an example, we are allowed to move animals in Australia for 48 hours without any water at all, or overseas for boat journeys lasting up to a month. That has caused enormous concern for members. Farmers in this country passionately want to maintain and grow our animal welfare standards, but we are concerned primarily about the double standards of the approach with other trading partners, which will potentially undercut farmers in this country.
Victoria Prentis
Q
Minette Batters: I think there is a case to be made on unintended consequences, potentially for Northern Ireland to Great Britain, GB to Northern Ireland, the Isle of Wight, and the highlands and islands. We need to be very clear for future reference about precisely what the movements are when they are crossing water.
Victoria Prentis
Q
Minette Batters: Yes, it has been a massive problem, and we really welcome the new terminology in the Bill about attacking as well as worrying. We have never felt that worrying really does justice to what is going on. We face a situation where 15,000 sheep have been killed every year. That is information provided by SheepWatch UK. We feel very strongly that the terminology needs absolute clarity of thinking for farmers, dog walkers and the police. A dog at large should be a dog on a lead of no longer than 2 metres, to avoid confusion. A dog “with its owner” is not always with its owner, so we feel there needs to be absolute clarity that a dog at large is on a lead.
Victoria Prentis
Q
Minette Batters: If that were needed for clarity, it would be quite easy to facilitate. It would be in the farmer’s interest to make sure their dog is controlled but, if it were needed for clarity, we would support that.
Victoria Prentis
Q
Minette Batters: I think it needs to be like that to cover everything.
Victoria Prentis
Q
Peter Stevenson: Yes, Compassion in World Farming is pleased that the Bill includes a prohibition on live export for slaughter and fattening, but the Bill does not prohibit the export of high-value breeding animals, which we accept—we have never campaigned for that.
I have worked on this campaign for 30 years, and it began long before I started, probably 50 or 60 years ago. Of course we are pleased, and I congratulate the farming sector. The height of the trade was in 1993, when Ministry of Agriculture, Fisheries and Food figures showed that we exported 2 million sheep and an unbelievable 500,000 calves, nearly all male, to the continent for slaughter. The farming sector has got those figures down, and they are now much reduced. We export about 30,000 to 45,000 sheep a year and, in practice, calf exports from Great Britain stopped about 18 months ago. There have not been any pig exports for slaughter or fattening for some years. The farming sector has done terribly well.
I am sure some farmers have misgivings about this ban, but I urge them to say, “Yes, please impose it.” I think it is right that this chapter now comes to an end.
Victoria Prentis
Q
Rob Taylor: Very much so. This has been a long journey. I represent the police forces of the UK, and I was the team manager for North Wales police in 2013 when we started the first designated rural team of its type anywhere in the UK. We now have more than 25 dedicated teams throughout the UK. The problem of livestock attacks previously existed in our rural and farming communities, but it was never identified. The main reason is that no dedicated team existed, and the Government and the Home Office do not require the police to record the statistics. In a very short time of managing the team, I saw the sheer scope and scale of the horror of livestock attacks in our rural communities.
On average, in north Wales alone, we were seeing 125 attacks a year under the antiquated law, with the death of many sheep and dogs, including those that were being shot or euthanised. Over the following years, I decided to try education, which did not work.
I am a big believer that there needs to be an end result of rectifying this problem. We engaged four other forces to go on this journey with us and to find statistics that show it is not just a north Wales problem. As a force, we had recorded our stats voluntarily, but the other four forces had not and had to take six months to get those statistics up to a certain level. Their statistics replicated ours, and they showed the pure horror of livestock attacks throughout the UK.
I am now in charge of rural events in Wales, so I have oversight of all four forces in Wales, and three of them are voluntarily providing statistics. Those statistics remain high and continue to increase, with the death of many sheep and dogs, and at substantial cost. The law is antiquated and does not cover the offence as it occurs, and it does not support the police in the investigation of such offences.
Victoria Prentis
Q
Rob Taylor: Yes, and I say that with some authority as we have worked on the law for the past eight years, and we have worked intensively with the Department for Environment, Food and Rural Affairs, the National Sheep Association and other interested parties to get it to this point today. I have been in many meetings where many amendments have been made. I have read through it in detail and know it back to front. I am more than convinced that it will give the police and the courts the power to move us forward, so that the Bill will make a huge difference to not only policing, but irresponsible dog owners throughout the UK.
Victoria Prentis
Q
Rob Taylor: It is an interesting question. I would say lead in certain circumstances. If someone is in a field with cattle, the issue is that with the dog on a lead, the cattle will stampede. People have been killed in such environments. It is not straightforward. However, in a field with sheep, we definitely recommend that it take place.
The law is many years old, and there are a number of things in that that actually will be in place for 2022, such as obtaining DNA sampling. The big one for me is that previously you could not ban a dog owner. If a dog killed 100 sheep, the owner would appear before the court and receive a maximum fine of £1,000. The next day, they could go back, buy three dogs and continue the offence. I think it is ludicrous that that still occurs in our countryside in 2021.
Daniel Zeichner (Cambridge) (Lab)
Q
Minette Batters: No, and it would be interesting to hear from the police on that. We feel that there need to be stronger controls. While I have the opportunity, the same applies for hare coursing. It is still far too easy to commit a crime with a dog without a severe penalty. We have a severe penalty on hare coursing with vehicles, but at the moment that cost falls to the police. We need to see that being tightened up.
Daniel Zeichner
Q
Minette Batters: With the loss of livestock at the scale that we are seeing at the moment, no, there is not. It is perfectly avoidable. The real challenge is that once a dog has attacked and killed a sheep, it will do it again. We have to have zero tolerance to stop that happening in the first place, otherwise it will continue to happen.
Daniel Zeichner
Q
Minette Batters: Well, with the climate we have here, air throughput is absolutely essential to ensure that animals are travelling comfortably. However, in banning live animal exports and opening up our market to a much greater level of raw ingredients, I think that there is a very strong case to be made on competitiveness. We are seeing rising standards of animal welfare and animal transport and the banning of live animal exports, but we are not seeing any recommendations to impose any of those laws on other countries. That is quite a major challenge as we move forwards. We all want to see higher levels of animal welfare, but, above all else, we want things to be fair.
Daniel Zeichner
Q
Peter Stevenson: Until it finally becomes law, the key issue is still bringing an end to the export of animals for slaughter. As I said, calf exports in effect ended at the end of 2019, when Scotland decided to no longer export them. However, that trade could resume. We are seeing young animals—between two and five weeks—exported from the UK all the way down to Spain, and then, in certain cases, after a period of fattening, re-exported from Spain for slaughter in Lebanon and Libya. Let us try to finally get that through and make it an Act of Parliament.
Although it is not in the Bill, I am aware that DEFRA has been consulting about changes for journeys in the UK, on shorter journey times, more space, more headroom and greater care about making sure animals are not overheating during journeys. All that is welcome. I know that the farmers had a number of concerns about DEFRA’s proposals; DEFRA’s response to the consultation struck a reasonable balance between welfare concerns and farmer’s concerns. I know that DEFRA is still talking to stakeholders about that. So yes, I think even within the UK we should be having shorter journeys. We have always campaigned for a maximum journey time of eight hours for slaughter and fattening. DEFRA says, and I know this from supermarkets too, in practice most journeys to slaughter are below eight hours.
Daniel Zeichner
Q
Peter Stevenson: There is a potential loophole, but it is not really possible to assess how much the loophole will, in practice, exist. The Bill exports from England, Scotland and Wales, but not Northern Ireland; because of the protocol, it would not legally be able to include Northern Ireland. There is a danger here, which I am hoping is theoretical rather than actual, that people in England, Wales and Scotland could send animals to Northern Ireland that then go on to the Republic and on to the continent. In practice, it does not sound that likely; the only ferry service to Northern Ireland from Scotland, which is the route that has been traditionally been used from Cairnryan to Larne, is operated by P&O and they have a very clear written policy of not taking animals for slaughter or fattening. A colleague of mine checked with Stena Sealink, which also operates from Cairnryan to Belfast, and they said that they are not licenced to take animals, and they seem to have no desire to get involved in that trade.
I am hoping that we will not see animals going from GB to Northern Ireland, and then on to the continent. However, there certainly is a danger of that. In the regulation-making powers that are given by the Bill on live exports, DEFRA could consider including some sort of requirement that, for people who are taking animals from GB to Northern Ireland, there is some way of certifying that those animals are genuinely destined for Norther Ireland and not bound for re-export to the Republic and the continent.
Daniel Zeichner
Q
Peter Stevenson: A bit like breeding animals, there has not been evidence of real problems with poultry over the years in the way that there has been with the export of sheep and calves. As far as I am aware, all the poultry being exported are day-old chicks; they have a yolk sac that for a certain amount of time is providing them with energy and liquid. Under current EU law, as long as the transport is finished by the time they are 72 hours old, they can be transported for 24 hours. I think DEFRA proposed to let that law remain in place.
When we look at the science, I think the figures could possibly be revisited; perhaps 24 hours is a bit long—perhaps 16 hours would have a better effect for the health and welfare of these tiny chicks. There is an argument for saying that those journeys should be completed within 48 hours of hatching—not 72. I think there should be some revisiting there, but we are not saying that the export of these day-old chicks should be brought to an end.
Daniel Zeichner
Q
Rob Taylor: Absolutely. As I said previously, I think bridges were crumbling between the police and farming communities, going back 20 years. Since 2013, I have seen a huge upsurge in the way in which the police deal with rural and farming communities. I highlight the fact that there are over 25 rural crime teams, which are expanding week on week. In Wales alone, we have over 40 dedicated rural officers, and I am dealing with them, along with four sergeants, as the all Wales crime co-ordinator. The resources are definitely there. On the 125 cases in North Wales, I can speak with authority as the previous team manager. Every single case is dealt with professionally and thoroughly from cradle to grave by a dedicated rural crime officer, and that is the same for Dyfed-Powys Police, Gwent Police and South Wales Police, who are currently coming on board. The same applies to a number of teams that exist throughout England as well.
Daniel Zeichner
Q
Rob Taylor: I firmly believe that it will lead to the outcomes that we are hoping for. Having dedicated officers makes us more efficient in how we deal with things. For example, if you go back 15 years, I was a young police constable in North Wales, dealing one day with a shoplifter and the next expected to go to a farm to deal with a livestock attack involving 10 or 15 sheep. I did not have a clue what I was doing—that was the case before dedicated teams came in.
I give North Wales as an example, but North Yorkshire has exactly the same kind of team, based on ours. I worked with them to start up that team a number of years ago, so I can speak with authority for them as well. They are experienced officers who will go to a farm, know exactly what the issues are, deal with them efficiently and quickly, and take everything on board. The new law makes it easier for officers to deal with the problem. In the olden days, you could not get DNA to prove an offence, so you had to try, try and try, and spend lots of time trying to prove the offence. The new law gives us the power to do that more efficiently by using dedicated officers. I am an absolute firm believer that this law will give us the power to do what we need to do, and do it better.
James Daly (Bury North) (Con)
Q
“a constable has reasonable grounds to believe that the dog has attacked or worried livestock on agricultural land or a road or a path…The constable may seize the dog”.
There is some more wording, but what is clear from subsection (3) is that the owner of the dog in those circumstances has seven days to reclaim it. There is a suggestion that at the end of that period, if it is not reclaimed one of the options open to the police is the destruction of that dog. Is that your understanding of the position?
Rob Taylor: No, it is not. My understanding is that the dog could be rehomed or passed on to someone else. It is not destruction—that is not my understanding.
James Daly
Q
Rob Taylor: The dog will be placed in the care of a dogs home, then it will be up for relocation to a suitable home. The problem that we have at present is that we seize a dog, and as soon as the owner turns up we have to give it back. Otherwise, we seize a dog and are stuck with it until whenever, and it is a really difficult one.
James Daly
Q
“The constable may seize the dog and detain it—
(a) until an investigation has been carried out into whether an offence under section 26 has been committed by reason of the dog attacking or worrying livestock, or
(b) if proceedings are brought in respect of such an offence, until those proceedings have been determined or withdrawn.”
Effectively, that means that we have one situation where there is seven days and another situation under clause 27(8) where the dog can be kept until the end of criminal proceedings. What is the difference between the two? Is it that under clause 27(8) the person has been charged with the offence and the dog will then be kept potentially on an indefinite basis, compared with the seven days I just referred to?
Rob Taylor: I would have to read through it again in detail, but I think part 2 relates to the risk that the dog is going to reoffend. I would need to read through it again to make sure, but from the meetings I have been in that is the belief I have. We see time and again that a dog will offend, be taken back by the owner and then at the scene, and the next day go out and kill three or four sheep. The next day it does exactly the same again. My belief is that the power there is for detaining the dog until the case is completed.
James Daly
Q
Rob Taylor: Absolutely.
James Daly
Q
Rob Taylor: It would be kept in kennels until such a time.
James Daly
Q
Rob Taylor: The dog would be kept in kennels and would be fed and watered properly, as other dogs seized under the Dangerous Dogs Act 1991 are. The first situation applies when the dog owner is not known. The second applies when the dog owner is known. The dog could be kept to prevent it from reoffending again. Over the last 15 years I have been dealing with dog offences, I would say that that power has probably been used once or twice. It is an extremely rare situation.
James Daly
Q
Rob Taylor: I have never come across that.
James Daly
Q
Rob Taylor: Absolutely. Court orders are given many times for people who commit offences against badgers or other similar offences of cruelty. They are given a banning order, which prevents them from keeping dogs. It is for them to actually dispose of the dogs or they commit a further offence of being in possession of a dog while subject to a court order.
James Daly
Q
“Any dog taken into possession in pursuance of an order under subsection (1) or (2)”—
which is the disqualification order—
“that is not owned by the person subject to the disqualification order is to be dealt with in such manner as an appropriate court may order.”
That covers a number of different circumstances. I am concerned that dogs that have not acted in an inappropriate manner, shall we say, are potentially going to be disposed of and destroyed. That seems remarkably unfair.
Rob Taylor: No, absolutely. We see it time and again with wildlife offences and other such offences. If you are subject to a disqualification order, it is your responsibility to dispose of those dogs, whether by rehoming them, giving them to somebody else or making sure that they are given to a dogs home. You cannot possess those dogs. Previously in my evidence I said that the problem we have is not with the dogs. It is about irresponsible dog ownership. You could have a great dog, but if the owner is a bad owner, they are going to continue to commit these offences. This is exactly the same. I am aware of numerous people in north Wales who are banned from keeping animals. There are numerous people throughout the UK who are banned from keeping animals, and quite rightly so. They are irresponsible and they treat animals in an appalling manner.
James Daly
Q
Rob Taylor: I do not see an issue with that.
James Daly
Q
Rob Taylor: If people are caught hare coursing or badger baiting and they have a disqualification put on them, it is their responsibility to rehome the dog and move it on; otherwise, they commit further offences. It is as simple as that. The two choices we have here are that we actually do that or we let the person commit an offence, such as the 100 sheep killed in Kent a few years ago. That person might go out and buy five Alsatians the next day. Where does it stop? There has to be a point at which that person is recognised as an irresponsible dog owner and not fit to keep dogs.
James Daly
Q
Rob Taylor: But that dog has done nothing wrong whatsoever up until that point. Dogs have a natural instinct to chase and attack. If the person’s dog that has committed the offence is no longer being walked, that person is walking his two whippets, Jack Russells or Yorkshire terriers and is irresponsible. That person remains irresponsible and that dog, once it attacks, will have a natural ability to chase. If the person decides to walk his dogs through a field without a lead or suitable responsibility, they will commit an offence and we are back to square one. We then have to get a disqualification order for the dog, which gets disqualified, and we carry on disqualifying that person, who could then have 20 dogs. We would spend 20 years trying to get that person not to be able to take their dog for a walk.
Ben Lake (Ceredigion) (PC)
Q
“within sight of a person and the person—
(i) remains aware of the dog’s actions, and
(ii) has reason to be confident that the dog will return to the person reliably and promptly on the person’s command.”
Do you think that this may have unintended consequences for your ability to enforce to the law?
Rob Taylor: No, not at all. It needs to be clarified here that an act that takes somebody to court is the upper echelon. I can see five phases with regards to a livestock attack. If a dog is at large in a field or is loose beyond the control of the handler and no sheep have been chased or worried, that would be a word of advice or a lead letter, which is a standard letter that we send off. If there is an attack where a dog is chased, it moves up to a community resolution, whereby we can impose things such as the dog owner having to have control. It is a bit like a yellow card in a football match. It can then move up to a caution, then it moves up again to a prosecution. The prosecutions and destruction orders tend to be the ones that are repeat offences or where the dog handler is irresponsible from day one. That is a decision for the police managers, such as me, to make.
There are five phases. It does not mean that every single offence would go straight in at level 5 and that we would prosecute; there are various ways we deal with this. The problem we have is that the people who are at level 5, who are irresponsible and keep committing the same offences, keep buying dogs and keep going out and letting their dogs attack sheep. The problem we have is at the level 5 area, but I should say level 1 is that we do not take any action. Level 2 would be advice, level 3 would be community resolution, level 4 would be a caution and level 5 would be prosecution and possibly destruction.
Not every prosecution ends in a destruction. That would be a decision for me as to whether there are aggravated features within the offence, such as the dog has done it twice or three time before, it is a continued offence or the number of animals killed is on such a massive scale. For example, 11 cows were chased in Anglesey and had their udders ripped off. They ran across walls, broke all their legs and died—£22,000-worth. In my opinion, that would be a high-scale offence. Sadly, that offender was never caught.
Ben Lake
Q
Rob Taylor: It would possibly make it simpler.
Ben Lake
Q
Minette Batters: An attack can cost tens of thousands of pounds to that farming business. We feel that it has to be proportionate to the crime committed and at the moment it is not. It is probably not for us to put a figure on it, but it is not proportionate to the crime at the moment.
Olivia Blake (Sheffield, Hallam) (Lab)
Q
“a working gun dog or a pack of hounds”,
and given their use in the countryside? Rob or Minette?
Minette Batters: I am simply not close enough to the detail. I think it would be an extraordinary situation for a pack of hounds that are hunting by trail anyway to end up in this position, so I cannot see either scenario happening in my opinion.
Rob Taylor: I think that was previously included in the Dogs (Protection of Livestock) Act 1953, and it was just left in as it stands. I agree with Minette. I do not think it is contentious and it is quite limited if it were to occur. That is the reason it is in there.
Cherilyn Mackrory (Truro and Falmouth) (Con)
Q
Rob Taylor: I think the word “working” means actually in the process of working, for example, retrieving a pheasant.
Cherilyn Mackrory
Q
Rob Taylor: We did a survey of the five police forces, as I said, between 2013 and 2017. We recorded the best stats we could. Luckily, North Wales had incredibly good stats because we would voluntarily record them every 24 hours, so we were very accurate. In North Wales, in excess of 70% of attacks were where the owner was not present, so that is a big one. The other four forces were Devon and Cornwall, North Yorkshire, Hertfordshire and Sussex. They came in with figures that were slightly less than that.
My frustration over the year is that everybody comes out with dogs on leads campaigns, whether it is a local council, the RSPCA or farming unions, whereas most of the time the problem is not that the owner is not present, but that the dog may have escaped, gone off or is some distance from the owner.
Cherilyn Mackrory
Q
Minette Batters: I think the evidence speaks for itself. As Rob has just said, in 70% of attacks nobody was present, but ultimately the dog has not been constrained within the garden or on a lead. The bulk of these attacks happen with dogs out on their own with nobody in the vicinity at all.
Cherilyn Mackrory
Q
Rob Taylor: There is also a third one. I have been to many livestock attacks in my years; I was a warranted Sergeant until 2016, when I retired and became a manager as a civilian, so I have been to these attacks with my team myself. The third scenario is that the dog jumps out when the car boot is opened. That is quite a common one; we see that a lot, or people just take their dog out for a walk and think it would never do it. A common thing that people say to us is, “My dog would never attack,” and lo and behold it has just killed three sheep. Those are the common ones. I would like to think it lessened when more people were home due to lockdown, and I would be interested to see those statistics.
However, as we know, more people at home bought more dogs, so that emphasises the problem itself. The main problem would be that somebody would buy a dog. Predominantly, about four years ago, everybody went husky-crazy and bought huskies. I am not sure if it was from a TV programme that featured huskies as quite a part of it, but something like 70% to 80% of the attacks we had that year were huskies. People just went crazy for huskies, and of course, after they stopped being puppies, they left them in their insecure gardens and went to work. Quite commonly, we would have an attack, go around to the house, and the owner would not even know the attack had happened until we followed a trail of blood to their back door and saw that the dog had blood on its fur.
Cherilyn Mackrory
Q
Rob Taylor: There is a real mix. I started looking at full moons and all sorts, because I really thought there was some theory in it. I believe it was similar when Harry Potter was very pro on the TV and in films, and everybody was buying barn owls. I will not name the programme, but there was a similar thing with a very famous programme, which I think has finished now, and people started buying huskies left, right and centre, and that was the problem. Those who know dogs know that huskies are a very difficult breed to keep because they can run all day, sleep for one hour, and eat some blubber on ice. Having them in a garden backing on to a field full of sheep is probably the worst-case scenario.
Dr Neil Hudson (Penrith and The Border) (Con)
Q
Peter Stevenson: Yes, I am encouraged that it will. Obviously it is not going to tackle all sorts of things, but specifically on the prohibition on live exports for slaughter or fattening, I believe that will improve welfare. As I said, until very recently, several thousand calves per year were being sent from Great Britain down to Spain. We also have sheep that were being sent to a variety of countries for slaughter—to France, the Netherlands and Belgium—but in 2019, there were some sheep going all the way to Hungary and Bulgaria. The big worry there is not just the length of the journey—although that is a big concern—but the fact that the animals may be re-exported.
As I said, in 2020, if I remember rightly, an animal welfare organisation was able to film calves with UK ear tags being loaded on to a ship in Spain—having been sent to Spain, and after a period of fattening—to be sent on to Libya, and also slaughtered in Lebanon. This will stop that risk of UK animals being sent on huge, long journeys.
In terms of other things, yes, I totally agree with your point: we have the problem, and have had it for many years, that the local network of small abattoirs has been rapidly disappearing because of economic constraints. We need Government to come in and help with that by providing funding, because otherwise there is a danger that we continue to have long journeys here, just within Britain.
It is also important that there are a number of farmers who want to engage in what are called private kills. They want to send their animals to a local abattoir, and then have the carcass back so that they can add value and sell it directly to customers. That is beneficial because it means a short journey to the abattoir for the animal, but in terms of boosting local rural economies, that is important, and we certainly need a network of small abattoirs. We also need to see some of the longer journeys within Britain coming down. Most journeys to slaughter are already under eight hours, but we really want to see all of them under that. Of course we recognise that there has to be an exception for very remote parts of Britain, such as the highlands.
Dr Hudson
Q
Minette Batters: I think everyone regrets the fact that we have lost the small local abattoirs. The fact is they have gone, and the distribution centres are so consolidated that we have lost our local routes to market. I used to have two local slaughterhouses within 20 miles. There is nothing now in that mileage range, and that will be the same in many parts of the country. We have lost the small abattoirs: it was too impossible for them to run. Everybody would like to get back to that, but it is just not available at the moment. There have been many conversations about mobile abattoirs, but we do not have the legislation in place to achieve that.
Everybody is supportive of the local agenda, but we drove that out and it has gradually got worse and worse. We have fewer and fewer abattoirs. We would need to bring them back and we would need to incentivise and empower that more local, added-value way ahead, which—like Peter—I am very supportive of. At the moment we have totally diminished it. Can you remind me of your other point?
Dr Hudson
Q
Minette Batters: We should not forget how hugely important that point is, both on genetics and on welfare. The position on border control posts has been hard-fought, and is still at some risk as negotiations on the Northern Ireland protocol continue. It is essential that we prioritise breeding stock—it is a number of 30,000 and it is important for both sides, the UK and the EU. We must avoid any unintended consequences. I remain concerned, on the European side, that we get this in place. Things are moving forward, but it is not a done deal yet.
James Grundy (Leigh) (Con)
Q
Minette Batters: I think Rob backed up what I said. It is not impossible to train a dog out of that behaviour, but once a dog has attacked a sheep it is extremely hard to turn that dog around and it would need supervision at all times with livestock to avoid that scenario happening again.
James Grundy
Q
Minette Batters: We have to bear in mind that if a dog has killed a sheep it is not the sheep that it has an affinity with; it is the fact that it has drawn blood. You then have to ask yourself what other damage it could go on to do, whether that be to other dogs, other animals in general, or indeed people. Once a dog has made an attack it is really in a very vulnerable place, for the damage it might go on to do.
James Grundy
Thank you for the clarification, which I think was helpful for the Committee.
The Chair
Are there any further questions from Members? In that case, I thank our witnesses: Minette Batters, President of the National Farmers Union; Peter Stevenson, chief policy adviser for Compassion in World Farming; and Rob Taylor from the National Police Chiefs’ Council’s livestock priority delivery group. Thank you very much indeed.
Examination of Witness
Rob Quest gave evidence.
The Chair
We will now hear from Rob Quest, the chairman of the Canine and Feline Sector Group, who is appearing virtually. We have until 3.30 pm for this session. Could the witness please introduce himself?
Rob Quest: Good afternoon, everyone. My name is Rob Quest. I am the current chair of the Canine and Feline Sector Group.
Victoria Prentis
Q
Rob Quest: Interesting. I think our consensus would be that we would support dogs on a lead in an enclosed field with cattle. That is easier to enforce than the general “at large” wording that was there, but we understand that the main concern with worrying is dogs that get out of people’s houses and have no one anywhere near them.
Victoria Prentis
Q
Rob Quest: Yes. I think the guidance would be that if cattle come towards you and there is an issue, you have to let go of the lead or take the lead off the dog, because we understand the dangers there.
Victoria Prentis
Q
Rob Quest: Wearing my hat as chairman of the CFSG, and with my local authority experience of whoever knows how long, we would not support an exemption for rescue animals. The puppy issue is one thing, but we have problems with rescue animals as well.
Victoria Prentis
Q
Rob Quest: We get some of the same problems that you have with puppies—false paperwork, fake vaccine certificates and so on—with rescue dogs as well.
Daniel Zeichner
Q
Rob Quest: We would support three. It is probably easier for the enforcers if there is just a blanket of three, but we understand that there are also issues if you limit it too much. When families are travelling, they may have more than three. We understand from the data that it is very unlikely that individual families would have more than three animals, but if more than one family were travelling they may have three. Overall, we think that three is a good number.
Daniel Zeichner
Q
Rob Quest: Yes, we would support cats being treated in the same way as dogs, and the same rules applying to cats as to dogs. From an enforcement point of view, again that makes life easier. Families may have dogs and cats, and to have different rules confuses things, so we would support treating cats the same way. There is evidence that the number of cats being imported has increased. Certainly, through Heathrow airport our cat seizures have gone up over the last two years.
Daniel Zeichner
Q
Rob Quest: We agree wholeheartedly with banning the import of cropped and docked dogs. My experience at Heathrow airport is of a big increase in the number of dogs coming in from the USA with cropped ears. As part of our remit, we also know that there has been an increase in breeds such as the Dobermann coming from Europe with cropped ears. We would fully support a ban on the import of those.
Daniel Zeichner
Q
Rob Quest: We have a concern about dogs coming in through the ports and on the train, because the requirement of the checkers is just to check the microchip numbers. They do not get them out of the containers. If they are flown in through an airport—as I say, we get cropped dogs coming in from the US—they will generally be released into a kennel, and it is very easy to see that they have cropped ears, but we have a concern that they are not inspected fully by the pet checkers, which are usually the ferry company or the train company, when they come in on that route. That is something that we highlighted in our response.
Daniel Zeichner
Q
Rob Quest: You need to have a visual check; otherwise, you will not know whether the animals have been cropped and docked.
Daniel Zeichner
Q
Rob Quest: If they do a visual check, it is easy to tell that a dog has had its ears cropped. It could be a requirement to do visual checks, or the whole checking process could be handed over to officials, but that comes with another pile of issues.
Daniel Zeichner
Q
Rob Quest: Resources would be the main one, and the priorities of officials at ports. If the checkers could be properly resourced and part of the official enforcement authority, that would be a good result, but we understand that issues of resources go along with that.
James Daly
Q
Rob Quest: Yes, the Canine and Feline Sector Group is made up of a wide range of organisations, such as Dogs Trust and the RSPCA, which you have already heard from, and the British Veterinary Association.
James Daly
Q
Rob Quest: Overall, animals in kennels under long-term official control are usually under the Dangerous Dogs Act 1991, rather than this legislation, but we would always advise that dogs should be in kennels for the absolute minimum amount of time. The sooner we can get them out of kennels and put in a proper home, the better.
James Daly
Q
Rob Quest: No, if a dog is not compliant on import it would have to go into one of the authorised quarantine kennels. The maximum time in those kennels to make a dog compliant is currently four months, and then it can come out. The minimum time is generally 21 days, but it may be less, depending on what subsequent paperwork turns up regarding that non-compliance.
Dr Hudson
Q
Rob Quest: No, we have not, but that might because, as you say, it is much more difficult to know if a cat’s claws have been taken out. We have not noticed that, but it is certainly something we could look for in future. As you say, it is very easy to see if a dog’s ears have been cropped when they are taken out of the container. We have not seen anything like cropped claws. I imagine that would be mostly from the States, because that is quite routine practice there.
Dr Hudson
Q
Rob Quest: I would agree.
Dr Luke Evans (Bosworth) (Con)
Q
Rob Quest: We do not see many ferrets being imported, to be quite honest. We see literally thousands of dogs and cats, but a handful of ferrets.
The Chair
As there are no further questions, I thank Rob Quest, chairman of the Canine and Feline Sector Group.
Examination of Witness
Mike Webb gave evidence.
The Chair
We will now hear from Mike Webb, head of policy and public affairs at Battersea Dogs and Cats Home. We have until 4 o’clock for this session. Will the witness please introduce himself?
Mike Webb: My name is Michael Webb. I am the head of policy and public affairs at Battersea Dogs and Cats Home.
Victoria Prentis
Q
Mike Webb: It will probably not surprise you to learn that I am in the three animals per vehicle camp, for reasons similar to those explained by colleagues earlier in the day. We still are yet to bottom out the intention behind setting the limit at five. It is worth recognising that the change to expressing this per vehicle rather than per person is incredibly welcome. That will make a significant difference.
We are arguing in favour of three simply because we do not believe that it will affect dog owners to a significant degree, given that so few people own more than three dogs. There are different figures being banded around. We have used the Pet Food Manufacturers’ Association figures, which say that 94% of dog owners have two or fewer dogs. That means that by extending it beyond three we would not capture too many legitimate dog owners, whose lives we certainly do not want to make difficult.
Victoria Prentis
Q
Mike Webb: It is a legitimate concern, although where I had some concern from the information from Brittany Ferries this morning was how many of the people travelling with more than three dogs in their party are a dog owner with two dogs and another dog owner with two dogs. Actually, four dogs in a car is quite a lot. How many of them are people who are passing those dogs off as their pets when, in fact, they are not? That is exactly what this law is trying to stop.
Victoria Prentis
Q
Mike Webb: Yes, given the loophole that was expressed earlier. We run an academy at Battersea that is focused very much on working with rescues, both domestic and international, to try to improve standards. One of the things we are working on is trying to prepare as well as we can for the advent of this legislation. My feeling is that most people recognise that it is necessary and that, if there were to be an exemption for rescue dogs, a significant loophole would be open to abuse. So for the time being at least, we would agree with that.
Victoria Prentis
Q
Mike Webb: I think the issue with cats at the moment is that although the trade is perhaps less lucrative and less well known or understood than with dogs, we know that it is increasing. We have seen a steady increase in the number of cats brought into the UK over the last five or six years. The number we have been quoting is an estimate from PDSA that suggests 48,000 cats were brought into the UK between the start of the pandemic and May of this year. That is quite a sizable increase on five or six years ago, and it is continuing to grow. Our view is that the Bill puts forward some really sensible and welcome provisions for dogs, and it just makes sense to extend those to cats. This is a really good opportunity to significantly improve animal welfare. By extending some of these measures, particularly around pregnant cats, this is a great opportunity to improve animal welfare across the board, not just for dogs.
Daniel Zeichner
Q
Mike Webb: Clearly, the Bill is trying to strike a sensible balance. We share the concern of some others that some of the definitions currently in the Bill perhaps muddy those waters a little. There is no need for some kind of blanket ban on off-lead walking. At the same time, however, if people have a reasonable suspicion that there is going to be livestock in the area, it is absolutely essential that they keep their dog on a lead. From our perspective, this is about people’s livelihoods. Dogs should not be walked off-lead in areas where there will be livestock present.
Daniel Zeichner
Q
Mike Webb: We welcome the seizure powers in the Bill, because if people are bringing animals in for a less than reputable purpose, ultimately there is no reason why those people should have those animals back. However, there are still a few areas that we feel need ironing out. In particular, with the move towards border control posts, which I believe are due to be operational from January, what happens if someone, either innocently or otherwise, takes their dog to the wrong place? One assumes that there will be adequate kennelling facilities at the designated border control post for animal movements, but what happens elsewhere? Our concern is that people might be given the dog back and told to return whence they came, thus exposing the dog to a hazardous journey. On how the imports system will continue to operate, we think the Bill makes some pretty sensible proposals. We hope that in some areas greater clarity will come out during Committee stage and in further scrutiny.
Daniel Zeichner
As ever, I think that we are good at identifying problems, but solutions are sometimes more difficult.
Mike Webb: If I may propose a solution on the imports idea, it seems to me that there is a great opportunity for partnership working here. Obviously, border control posts, the police or Border Force, will only want to keep kennelled animals for a period of time. It seems to me that what they will require is partners to move those animals to thereafter. There is a strong and very dedicated network of rescue centres around the country, so we would encourage Border Force, for example, to get to know their local rescue centre, which might have kennelling space that they are able to help them with.
Daniel Zeichner
Q
Mike Webb: In a perfect world we would have one easy-to-access database, but we do not live in that perfect world and we are unlikely to. Ultimately, these are commercial entities and it would be very expensive and complicated to get back to a position of there being only one microchipping database for dogs, and that is before it becomes compulsory for cats, which we expect in the coming months. It is really essential that there is one simple, easy-to-access place that vets can visit to find out which database is holding the information on the chip they scanned, rather than having to go through, I think, 13 currently compliant databases—plus however many non-compliant databases. If there was one simple portal with the capacity to access the different databases that vets need, that would surely save them a whole lot of time.
Dr Hudson
Q
Mike Webb: Not yet, but it stretches credibility to think that it is not going to happen eventually. As we see more and more animals coming in at the border with relatively little checking, and certainly no visual checking, it seems only a matter of time. This is already a consistent worry for rescue organisations, as you can imagine. When we see an animal that causes any sort of suspicion, we separate it into our isolation kennels. That is not a particularly nice experience for the dog, but happily so far every time that has happened we have done the necessary blood work and it has come back with nothing to worry about, but we have to remain ever vigilant.
Dr Hudson
Q
Mike Webb: I think it would provide the public with greater security and confidence in the animal that they are bringing in. We remain somewhat sceptical of whether people are as aware as they might be of the risk of animals that they bring in.
Dr Hudson
Q
Mike Webb: Yes, and we certainly see people who are unaware of behavioural issues with animals that they have bought that come into Battersea. We have seen that increasingly throughout the pandemic. We are seeing a greater proportion of our intake of animals that have particular behavioural problems. It may well be that over time we see the same with health problems too.
Dr Hudson
Q
Mike Webb: Yes, but they are still fairly small numbers. I looked it up this morning. Six years ago, in 2015, we had only one animal with cropped ears, and last year we had 12. They are still fairly small numbers, but that is how these trends work. We see this time and again with rescue centres. Trends tend to hit us a bit later because of the nature of how we source animals. A lot of animals are given up to us for whatever reason. We do not necessarily perform the same role that a breeder would in the animal supply process. We tend to see trends a little later, after they have taken root. We monitor social media discussions and we are seeing an awful lot more promotion of animals with cropped ears. That is why we feel that the Government are acting in a timely fashion. Ultimately, these are mutilations that for a long time have been considered illegal in this country. If it is illegal for a UK vet to perform this kind of procedure, surely as a country we should consider it similarly illegal for someone else to do it and bring the animal into the UK. We would absolutely include the declawing of cats in that.
Dr Hudson
Q
Mike Webb: We do, and I would add that the definitions under section 5 of the Animal Welfare Act 2006 are actually quite clear that anything that is not of medical benefit to the animal should be considered an unacceptable mutilation under the Act. We support that and think the Bill strengthens the provision already in law very well.
The Chair
If there are no further questions from Members, I will thank the witness, Mike Webb, head of policy and public affairs a Battersea Dogs and Cats Home, on behalf of the Committee. Thank you very much. Our next session will be at 3.45 pm.
The Chair
We will now hear from Justine Shotton, president of the British Veterinary Association, who will appear virtually. We have until 4.30 pm. Could the witness please introduce herself for the record?
Justine Shotton: My name is Justine Shotton, and I am the president of the British Veterinary Association, which is the national representative body for veterinary surgeons in the UK.
Victoria Prentis
Q
Justine Shotton: Thank you very much for the opportunity to give evidence. We are absolutely in favour of the livestock worrying part of the Bill. We have one area of concern: there need to be safeguards in the Bill to ensure that any seized dogs are not held in kennels for long periods, because we are worried that that could affect their welfare. That is really our main concern in that area.
Victoria Prentis
Q
Justine Shotton: We feel that this is an area where we really need to focus on not just journey times but the overall experience of the animals. In some instances, the journey time may be shorter even if they are going abroad. We need to be mindful of the whole picture and the welfare impacts on the animals, so it is a bit more nuanced. We need to be really aware of not only the quality of the journey overall, but whether such things as time spent in markets or collection centres will affect the journey and will be considered in terms of the journey time. We need some tightening up of the welfare experience of animals in collection centres and markets. We also have a concern about how the Bill could affect rural areas, in terms of travel time from the highlands and islands. We want to ensure that a ban on exports does not oversimplify the issue when there are other welfare considerations.
Victoria Prentis
Q
Justine Shotton: Yes.
Victoria Prentis
Q
Justine Shotton: Yes, and we are very happy to support and feed in where we can.
Victoria Prentis
Q
Justine Shotton: We support a reduction in the number of animals per consignment in general, and the ability to restrict imports on welfare grounds, as in other areas that are detailed. If the reduction goes ahead, we ask for a tightly worded exemption, so that people relocating permanently back to the UK who have more than three pets can bring them all. We are concerned about that in particular, but we support measures in general that reduce the number of animals per consignment.
Victoria Prentis
Q
Justine Shotton: To some extent, the numbers are relatively arbitrary, but overall we feel a reduction is sensible. We have some key asks on the importation of dogs, cats and ferrets. We feel there should be mandatory pre-import testing, particularly for dogs with unknown health status coming from countries where we know that diseases that are not present in the UK are endemic. That is partly to protect our dog populations, but also to protect public health, because some of these are zoonotic diseases. We are seeing an increasing incidence of such diseases as Brucella canis. We would really like an amendment to be tabled on that.
Victoria Prentis
We have seen your evidence, and of course, my hon. Friend the Member for Penrith and The Border asks questions about that frequently. Thank you; that is all from me.
The Chair
I am sure he will ask some more, Minister. We now go to the hon. Member for Cambridge.
Daniel Zeichner
Q
Justine Shotton: We have a very detailed annexe to our briefing, which we have sent you, so I refer you to that on specific wording changes. We are particularly worried about single-kept primates—how changes to the number of primates you might be holding could lead to primates being on their own, which has serious welfare implications for such a social taxon. If a licensing scheme is implemented, rather than a complete ban, then we want that to be as tight as possible, with very high standards, so that keeping primates really is the exception rather than the rule. That would involve experienced keepers, who would be part of international breeding programmes, for example, so the standards were at least as per zoos, if not higher. We know that local authorities will need support and resourcing to enforce this, and we can absolutely support vets, in terms of instructing them around the training that they require, and acting in their areas of competency.
There are a few asks on the detail. We feel that the licence length is far too long at six years, and want that brought down to four years, with inspections every couple of years. We also want a reduction in the rectification time from two years to six months, because two years is a very long time for welfare issues in primates.
A key concern around this part of the Bill is that it could be applied to other wild animals, and if that goes in there, there needs to be a caveat: species-specific needs should be considered and relevant stakeholders engaged before it can be applied to other species. It could work well with primates if we can get a few changes in there, but we do not think it is appropriate for it to apply to other species at this point.
Daniel Zeichner
Q
Justine Shotton: We would prefer a ban, unless the licensing standards are extremely high, so that licensing really is only for the occasional individual with legitimate reasons, where we can adequately ensure the welfare of those animals.
Daniel Zeichner
Q
Justine Shotton: We do feel that dogs should be on a lead. We do not want to discourage people from walking their dogs in the countryside. We know the welfare benefits for the dogs, as well as for their owners and their mental health, but we think it is appropriate to have dogs on leads when they are around livestock.
Daniel Zeichner
Q
Justine Shotton: I think we would have to engage with our stakeholders in more detail to see exactly what that looks like, but it is about ensuring that the welfare needs of animals can be met throughout the journey—a lot of injuries and welfare compromises happen around loading and unloading—and around being fit to transport in the first place. We want to ensure that anyone in charge of those animals at any point along their export knows how to meet their welfare needs. They need adequate veterinary-led training in that.
Daniel Zeichner
Q
Justine Shotton: I think it how it is applied depends on the country. There are a number of different tests for different diseases, but we would want to see those put on an import certificate that came with a dog that had been declared to be free of certain diseases via testing, and we would want to see adequate results from approved laboratories. That is the way it works for other diseases and other species, when it comes to imports and exports.
Daniel Zeichner
Q
Justine Shotton: Yes. We have a number of additional asks. For example, we would like the reintroduction of tick and tapeworm treatments for cats as well as dogs, and a reduction in the amount of time before animals—dogs and cats—come in for the tapeworm treatments. As a general rule, we think that the diseases are slightly different, depending on the species and the country, but ideally pre-import testing would apply to both groups.
Daniel Zeichner
Q
Justine Shotton: Absolutely. The Royal College of Veterinary Surgeons, which is our regulator, uses the term “specialist” to refer to vets who have achieved the highest academic level of qualification, which is a diplomate status in a certain field. When they have achieved that level, they can be called “specialist,” so it is a particular term in a professional context.
For example, I am a zoo vet. I have worked in a zoo for seven years and I look after primates on a daily basis, but I am not a specialist. I could be considered an expert in primate care, I suppose, and I should be considered one of the people whom it would be appropriate to have look after primates and ensure that their welfare needs are met, but I am not a specialist. That is why we would like that wording changed.
Dr Hudson
Q
Justine Shotton: That is to protect not only those animals, but animals in the UK. Certain parasites can be detrimental and harmful to human health, so we want to ensure they are eliminated before those animals come in. The timeframe is important in terms of the elimination. There are also some nasty tick-borne diseases. This would protect not only our pets but public health, and the timeframe is important because of the lifecycle of those animals and the timeframe in which they breed infection.
Dr Hudson
Q
Justine Shotton: Absolutely.
Dr Hudson
Q
Justine Shotton: I would say that the numbers are relatively low. Very few zoos have staff vets—they are mainly the big zoos—so we are talking about just a handful of people. Some of the smaller zoos and wildlife parks use local vets with a level of expertise that would be appropriate. It is a relatively small number. I could not give you an exact figure, but off the top of my head, it is probably fewer than 50.
If there was a licensing scheme, rather than a complete ban, we would need to make sure that since the licensing standards were so high that really it would apply to a very small number of animals, so that the vets would be able to service those animals and look after their welfare needs appropriately.
Dr Hudson
Q
Justine Shotton: Again, it depends on how many licences would be granted. From my personal perspective, zoo vets can be very busy, and they may not, in terms of biosecurity, want to be going off site to look at primates in other areas and other collections. I think we need to be mindful of that. There are vets in practice who could service a need if appropriate, but it would need to be relatively small numbers. That is my personal opinion.
Dr Hudson
Q
Justine Shotton: Unfortunately, we do not know the exact numbers. I never came across that when working in private practice. In small animal practice, I never saw a primate as a pet. There was a local wildlife park that had primates, and it was looked after by a zoo practice.
I think it would be hard to define the numbers exactly. We worked with the British Veterinary Zoological Society on our response, and it did not know the numbers either, so I think they are small. However, there could be places where there are legitimate keepers who keep primates as part of, for example, breeding programmes that may be helpful for international conservation work. The numbers would be low, but that could be a legitimate reason.
Dr Hudson
Q
Justine Shotton: Exactly. I know personally from my zoo experience that that is the case for other species. We have worked with organisations that have that, and it could be a useful place for animals to go and to come from the zoo populations. Most zoos only trade as part of international breeding programmes with other zoos, but there is a small place where this work could be needed when it comes to primates.
Dr Hudson
Q
Justine Shotton: Clarity is really important. On primary or secondary legislation, we do not have a particular view, as long as it is robust and enforceable. We feel that if there is secondary legislation, particularly around imports of pets, perhaps some of our asks around tick and tapeworm treatment could go there; it would be even easier to amend that. On gestation, in an ideal world, we would support the ban of importation of any pregnant bitches, but we understand how difficult that is, particularly without ultrasound scanning, which is why either a proportion of gestation or, when you visually assess it, around 42 days seems appropriate. It is not the ideal situation, but it would be impossible to enforce below that.
Dr Hudson
Thank you. Hopefully the Minister and the Government can help us through this process. It is really helpful for us to hear that your view is that this important stuff needs to be done in either primary or secondary legislation, but on some of these issues, such as the health status of animals, it needs to be done quickly, so we can stop diseases coming in and stop cruel practices. Hopefully the Government can work with everyone on that.
Dr Evans
Q
Justine Shotton: Our main concern is that these are under review, and we and other stakeholders have not had sight of the new standards. We also do not know whether there will be a transition period. That is really important, particularly for some of the smaller, less resourced zoos and particularly after the pandemic. Zoos have really struggled during the pandemic, even the very big ones. We absolutely support higher welfare standards in zoos, but we need to be mindful that if there are changes that will take time, zoos need time to make those changes, otherwise there could be welfare harms to those animals, particularly with the challenges we are seeing around exporting zoo animals at the moment, which is very difficult. They could go into other areas of trade where their welfare may be compromised. Our key ask is around having sight of the new standards and a legitimate transition period for those smaller zoos in particular.
Dr Evans
Q
Justine Shotton: Again, I think we would want to see what it entails. Personally, I work for a conservation-focused zoo and I think conservation is really important and absolutely a key part of why zoos should exist in society. However, in terms of our comments on conservation more broadly, we would want to see what that would look like before we could comment, how achievable it is and exactly what it would cover.
Dr Evans
Q
Justine Shotton: Yes, probably more can be done in both of those areas in terms of communicating to vets and other members of the zoo community about welfare and what zoos can do. We do a lot of animal welfare assessment, for example, in zoo animals. We have published a lot on that in our zoo in particular. I think sometimes the public do not realise the breadth of what goes on in good zoos to maximise animal welfare, so I think public education is vital as well.
Olivia Blake
Q
Justine Shotton: In terms of breeding in general, if there was licensing, that would have to be very tightly worded around breeding itself. It calls for neutering in another part of that wording, and we want to be really clear that that also includes contraception. Primates live in these social groups, and if you neuter rather than contracept them, sometimes that can really disrupt the group dynamic. There are a lot of methods of safe contraception available that experts in primate medicine would be able to advise on, which is why, again, it fits in with the annual health check that we are recommending. The vet would be able to have that conversation with the primate keeper and discuss the appropriate method of contraception or, in possible circumstances, breeding if it was part of a legitimate reason for breeding.
Olivia Blake
Q
Justine Shotton: Yes, as I mentioned, making sure that the welfare issues of single kept primates are met, so that if there is a change in the number of primates that people are proposing to keep, it is assessed on a case-by-case basis. We want to make sure that the licensing and rectification periods are reduced, as I mentioned already, and that there is adequate resourcing for local authorities as well as training. The other thing we would be calling for under a licensing system is a centralised database of primate keepers, so that it is easy to access and see where all these primates are being kept.
The Chair
As there are no further questions, I extend our thanks to Justine Shotton, president of the British Veterinary Association, for joining us.
Examination of Witness
Mike Flynn gave evidence.
The Chair
We move straight on to our next witness, Mike Flynn, who is also joining us virtually. He is the chief superintendent of the Scottish Society for the Prevention of Cruelty to Animals. Could you please introduce yourself?
Mike Flynn: I am Mike Flynn, chief superintendent of the Scottish SPCA. I am delighted to be here.
Victoria Prentis
Q
Mike Flynn: I am absolutely delighted that you have worked with the devolved Administrations. If certain parts of the Bill are not UK-wide, that will open up loopholes for everyone. Take cropping dogs’ ears, for instance: if it is not banned in Scotland, they would import them into Scotland and transport them down to England. It really has to be UK-wide.
Daniel Zeichner
Q
Mike Flynn: On the importation of dogs and the import and export of livestock for further farming, I think you are on the right track. I have spoken to people in the Scottish Government and they are happy with that—I believe a consent motion has already been laid before the Scottish Parliament. As I said in my previous answer, if there is one part of the UK that is exempt, it will open up loopholes and encourage people, especially in the puppy trade, to exploit that loophole.
Daniel Zeichner
Q
Mike Flynn: That is way above my pay grade, I am afraid. That will bring many problems, but it is something that the UK Government and the Administrations will have to work through.
Cherilyn Mackrory
Q
Mike Flynn: I think what David Bowles of the RSPCA was referring to was in the protection of livestock and dogs attacking and worrying sheep, the definition of on the lead or under close control. We argued at the time that if a dog is not on a lead in an area where there is livestock, it is not under close control. Your Bill states they must be on a lead less than 1.9 metres long. I have been in this job for 34 years, and I have never known an occasion when a dog has attacked a sheep when on a lead, because you have physical control. Some say a dog always comes back and if they whistle it will do that, but that is not the case. Some dogs will just run blind. They may have walked past the same sheep day after day for years, and then one day it could just go. The devastation is horrendous for the farmers and the animals involved.
Cherilyn Mackrory
Thank you. I think we have answered the “lead or no lead” question.
James Daly
Q
Mike Flynn: Yes. It was in the original 1953 Act. The Member’s Bill that Emma Harper put through last year updated it to include a wider definition of livestock—ostriches, llamas and all that kind of stuff—and to increase the penalties up to 12 months’ imprisonment and a £40,000 fine.
James Daly
Q
Mike Flynn: The case that Paula referred to earlier of a spaniel did take just under four years to conclude in court, because it kept getting postponed, for various reasons. Thankfully, the law in Scotland has recently changed—as recently as a month ago. Up until then, in any case that we took—because we are a reporting agency to the Crown Office, authorised by the Scottish Minister—we had to keep the animal as a production if the person refused to sign it over, until the conclusion of the criminal case. It was that or we had to take a civil case against them, which could cost up to £60,000. So that led to animals being kept in our kennels. We have the best staff and best kennels in the world, but it is not welfare friendly to keep a young dog, which is a two-year-old adult by the time it gets out of there. The law has recently changed the emphasis: animals that are seized in certain circumstances can now be disposed of after a three-week period. We have to issue a decision notice on the person, stating our intention is to dispose of the animal. “Dispose” does not mean destroy; we can rehome it, but it can be put down on veterinary advice. The person can appeal that decision, but that would be very, very unlikely.
This was originally designed for the big puppy farming cases, because we have had cases where—well, the biggest that I think we had was one where we seized 109 dogs, and they were in our care for just under 18 months. First, it is very bad for animal welfare; secondly, it is a horrendous cost to a charity, because we never get that money back. I think the biggest cost we have had was from a case with 58 dogs that had been in for 23 months. It works out at £15 per dog per day—that cost us £440,000.
There is a compensation element. W have to notify the person in the event that they lose the case or the sheriff decides otherwise. They are compensated for the current value when the animal was seized. In that individual case, the maximum compensation would have been £25,000, so we would have saved £415,000 and protected animal welfare.
James Daly
Q
Mike Flynn: Well, there is provision to recover reasonable costs, but sometimes the people that we deal with—I am sure the Royal Society for the Prevention of Cruelty to Animals experiences the same—have no financial means. Where is the punishment in £5 a week for the rest of their life or something like that? If the animals are signed over, or with the new provision, we can get them into loving new homes a lot quicker and then it does not matter how long it takes for the criminal proceedings to commence. If Westminster has any power, I am sure the RSPCA would love you to introduce something similar down there.
Dr Hudson
Q
Mike Flynn: There must be several examples, but one that springs to mind is that until about nine years ago, when a consequential amendment to sentencing powers was brought in, somebody banned in England was not banned in Scotland. It was not UK-wide until that amendment came in, so people from Manchester and Liverpool who were banned were moving up to Scotland and evading the ban—I am sure there would be Scottish people doing the same. But the amendment closed that, so if people are banned in England and Wales, they are also banned in Scotland, and vice versa. So you have things like that.
Lucy’s law has been widely talked about, but there are loopholes in that. Somebody can say, “I bred it myself.” People who bring in pregnant bitches did not breed the dog, but they hand the bitch over when it gives birth. Let us be honest: a lot of the people we deal with are out-and-out criminals. I am talking about the puppy trade. They just use puppies as a commodity, and if they can find a loophole, whether it is through England, Wales or Scotland, they will find it and use it because the profits are so huge.
Dr Hudson
Q
Moving on to a different species, in the evidence we have taken today we have not covered horses and ponies. I see from your experience, Mike, that you have worked with all creatures great and small, and you have some experience in the equine world as well. The export of livestock in the Bill covers horses. We on the Environment, Food and Rural Affairs Committee have taken evidence that not one horse has been legally exported to the EU for slaughter, but potentially thousands have been exported illegally. A lot of that comes from identification issues and people passing the animals off as going for competitions and suchlike. Do you feel that the Bill will help shut that loophole and improve the transport of animals so that horses move around only for legitimate reasons? Will the Bill help the equine world?
Mike Flynn: I do not see that it can do any harm. As you have just explained, a lot of the movement of these animals is illegal in the first place. You have to sign the horse out of the food chain, and that does not happen. You just need to go back to the horsemeat scandal many years ago. Our main port in and out of Scotland is Cairnryan, which has a direct link to Northern Ireland. There was a regular trade of equines going from Scotland to Northern Ireland and down into southern Ireland. Where they went after that, I have no idea. Anything to deal with that will help. The legal issue in my opinion is exporting for further fattening or immediate slaughter.
Dr Hudson
Q
Mike Flynn: There is a whole other debate on that being taken up by mainly the British Horse Society and World Horse Welfare about the identification of equines and how it can be forged and misrepresented and all that kind of stuff. So, yes, you have got that.
On the dogs side, you heard earlier—from Paula, I think it was—about how there might be dogs coming in from Romania and the lack of border checks. We have had animals coming in. We are not swamped with them like down south, but we do get quite a large number of dogs coming in from Romania being delivered directly to people in Scotland. The last case is pending prosecution. The paperwork had been checked by APHA, the Animal and Plant Health Agency, at the port of entry, but nobody had actually looked at the dog, and that dog should never have been transported. It was in an appalling condition.
We have stopped a lot of puppy dealers and agents. They have microchip certificates and they have six dogs, but there is no guarantee—we have proven it many times—that the microchip certificate with a number on it matches the dog that is in the car. That could be, “Yes, I’ve got this dog, but it has not been vaccinated as it was claimed it has been.” The Scottish Government are bringing in another provision about rehoming a vanload from outwith Scotland into Scotland. If it is a dog that comes in from a European country, part of the condition is that it must be checked by a UK-registered veterinary surgeon before it is delivered to its final destination because of the standards of veterinary care elsewhere, and the number of forged documents that come in is phenomenal.
Dr Hudson
Q
Mike Flynn: What we have picked up is the number of very disturbed dogs that are coming in. A lot of the ones from Romania come from alleged kill shelters. They were just strays, rounded up off the street, so you have a lot of behavioural problems. There are a lot of health problems with the dogs. I have not come across one that has infected another dog here, but there are huge welfare issues, which could be easily addressed by a physical examination as they come in.
Dr Hudson
Q
Mike Flynn: Without question, because as I say, they are not being checked. Because there are not enough pups in the UK we have a massive problem with them coming over from Ireland, but there are not even enough of them at times, so they are bringing them in from Romania, and charging people vast sums of money to get a dog delivered to them—in one case, at midnight on a Saturday, and in an appalling condition. You have all the veterinary fees that you are incurring. You have the welfare of the individual dogs. All that could be avoided through sensible legislation such as this, and proper enforcement.
Ben Lake
Q
Mike Flynn: I know that David Bowles from the RSPCA voiced a concern earlier. From my 34 years’ experience—we do not directly deal with this, but we assist the police quite often—I have never known a dog that has attacked or savaged a sheep that has been on a lead in the field with its owner attached to it. It is very rarely intentional. The majority say, “My dog would never do that,” until the day that it does. The dog runs wild. Some people say, “But the sheep was still standing when I got my dog back.” They do not realise that it has aborted about an hour later. From the trauma, they can die of stress an hour after you have regained your dog. If your animal is on a lead, it cannot attack something; it is as simple as that.
The Chair
Mike Flynn, chief superintendent of the Scottish Society for Prevention of Cruelty to Animals, thank you very much indeed for your time.
Examination of Witness
Dr Hazel Wright gave evidence.
The Chair
We move on to our final witness of the day, Dr Hazel Wright, senior policy officer at the Farmers Union of Wales, who is joining us virtually. We have until 5.30 pm. Dr Wright, please introduce yourself for the record.
Dr Wright: My name is Dr Hazel Wright, and I am the senior policy officer for the Farmers Union of Wales.
Victoria Prentis
Q
Dr Wright: Yes; they are huge and longstanding. The Bill is well overdue in that regard. We have repeat attacks and offences on farms. A National Sheep Association survey said that one farm had been hit up to 100 times in one year. The financial and emotional consequences of that are huge. Surveys from North Wales police, which was the first police service to record the data, gave estimates of about 300 or 400 attacks in about three and a half years, which is one every three days. That is just in north Wales. In a system that has low profitability and low margins, those kinds of attacks are make or break for some businesses, especially those that have built up their breeding stock over long periods. They have managed to build businesses up from scratch. Some of them are having problems with succession, for example. It is a massive issue, which I cannot be overestimated in the current climate.
Daniel Zeichner
Q
Dr Wright: Everything that I say from now on is caveated with the fact that the Bill is incredibly welcomed and is good news. However, I do not think it goes far enough to define under close control or proper control. We need to have a situation where dogs are on a lead in fields near or adjacent to livestock. I notice that the Bill says that if somebody believes their dog will return “reliably and promptly” then it is under close control, but I honestly do not believe that anyone can be confident that that would be the case when their dog is in a field near livestock. Dogs are natural predators—it is in their genetic make-up. I feel that the Bill needs to go one step further and ensure that dogs are kept on a lead.
Daniel Zeichner
Q
Dr Wright: No, I do not, actually. Because there are repeat offences, I feel that the seriousness of this in the past has not reached the critical level to be a deterrent for people. If we want it to be a deterrent and we want it to work, the fines have to be serious. They have to relate to the amount of financial devastation that there has been on farms. We are talking about tens of thousands of pounds of losses on some farms—and those losses are just financial, and do not include the other indirect losses with breeding stock, and so on. We have to take it seriously, and the fines should be increased.
Ben Lake
Q
Dr Wright: The length of “1.8 metres or less” seems reasonable. I cannot see a problem with that in and of itself. As you say, the Bill says “under proper control”, which is an arbitrary statement. It depends on the confidence of the dog walker, which may or may not be real-life situation confidence. I think that many people assume that their dog would come back when, actually, in that situation, it would not. It is a lack of understanding. I know I am reiterating what I said before, but it is so important for our membership to get this part right. I do not have a problem with the 1.8 metres, but I think dogs have to be on a lead when near or adjacent to livestock.
Ben Lake
Q
Dr Wright: According to the National Police Chiefs Council’s data, that is about 80% of attacks. Obviously, keeping dogs on leads would combat many of those issues.
First, the powers in the Bill for DNA sampling and evidence gathering are essentially crucial for that. Even when dogs are with dog walkers, the attack might not be witnessed and the dog might not be in the field when the farmer approaches it. We need to have a situation where police can gather evidence. Quite often, the police are aware of the dogs in the area that are the likely culprits of an attack because they tend to be repeat offenders.
The other thing we need to look at is mandatory reporting of those attacks, which allows you to look at regional approaches that might be different in different areas. For example, if you have data that says it is dogs escaping from dog walkers in one area, but it is dogs that have escaped from home in another, you can tailor your mitigation measures based on that data. Without data, you waste resources because you use them ineffectively.
The FUW ran a Your Dog, Your Responsibility campaign last year, which asked members of the public if they knew where their dog was when they were not at home. We talked about appropriate boundaries in fencing for those animals because we know, from the data, that 80% of dog attacks occur when the owner is not around. We would not have run that campaign without those data, so we have to start making sure that we record such information in order to adopt regional approaches and, as I say, to have the mitigation measures match where the problems are.
Ben Lake
Q
Dr Wright: You could do it through the civil courts, but that is very onerous and difficult for the farmer. In the past, it has been very difficult to prove which dog was responsible for an attack. I am hoping that the new powers offered to police under the Bill—as opposed to the 1953 Act, which basically left them powerless—will give people more confidence in forces dealing with the attacks, which will bring more farmers forward in order to start proceedings against individuals. I would like to see that it is easy, simple and straightforward, and not expensive, for a farmer to do that. At the moment, farmers are victims of a crime, but they are not being recompensed for that in the way that maybe another victim of a crime would have support.
We need a support network for farmers who have gone through this ordeal. We have 12 regional county officers who provide support to our members. Official and proper support is also needed to deal with the emotional and financial impact, and to signpost farmers to how they go about launching legal proceedings. We should not expect them to take the burden upon themselves, especially at a time when it could be very difficult financially for them.
James Grundy
Q
Dr Wright: Yes, I do think that. I also think that that is part and parcel of poor ownership. We talk about dog attacks, but a lot of this is actually to do with the irresponsible ownership of a dog and how a dog has been allowed to behave in the past. I am certainly not an advocate for saying that every dog that attacks sheep should be destroyed—of course not. Every case has to go on its merits, but given the data that I have seen and the conversations that I have had, it tends to be repeat offenders in many cases.
James Daly
Q
Dr Wright: We have had a lot of conversations with members about how things happen with livestock worrying after the horse bolted, because, in effect, you are trying to find the culprit of an attack that has already happened. I do not think that we will ever get to a situation whereby we can prevent every single attack—that is absolutely correct. I am hoping that the Bill will increase the seriousness of the offence, so that people understand that even if they are not present at the time and there are no witnesses, a police officer could knock at the door with a warrant, take a DNA sample from the dog and compare it with DNA collected at a crime scene. You do not have to have been around at the time of the offence.
I am hoping that intelligence within communities will help as well. When you do not legitimise something and say that it is just one of those things, when legislation comes in and says, “Actually, we’re taking this seriously, because this is a very important issue,” the fines, the powers for police, the enforcement and the investigation display our strength with this and how important we feel it is, and that will feed back to communities where there have been problems and help the police in their ability to do something about it. In some respects, I know it is after the horses have bolted, but I am hoping we can close the door to stop any more horses escaping. That is the analogy I give to farmers, because as you say, you would never solve it 100% of the time. What we need to get to is that when dog owners are thinking about their dogs, they understand that there are serious consequences to this.
There is a responsibility on industry to communicate that as well. I happen to sit on the Animal Welfare Network Wales, which has a lot of animal charities on it as well, and I have been using their groups to disseminate to their members—the people who would not necessarily speak to the union but would speak to, say, other animal charities about how to look after their dogs. So there are ways and means to get the intelligence out there to those people who maybe would not have known about it before. As you say, we are not going to get everyone, but I am hoping that by committing what we have done so far to it we can potentially stop future attacks.
Cherilyn Mackrory
Q
Dr Wright: It is interesting, because we provide signs for members but we have been constrained by what we can and cannot say legally, because we cannot say that dogs must be kept on a lead near livestock. What we say is, “Please keep your dog on a lead” near livestock at the moment. I am hoping, with the Bill, assuming that I get the change that I would like to see, which is that they must be on a lead and not just with this arbitrary “proper control” definition, that members can put more enforcing signs up that are a bit more important than the ones they put up before. When a dog walker sees a sign that says, “Please keep your dog on a lead”, it is quite gentle, is it not? If the sign says, “It is a legal requirement for your dog to be on a lead in this field”, it is a different conversation. I would like a farmer to be able to do that. Without the Bill allowing them to do that, you put them in a position where they are still having to just be polite, and I would like them to be backed up by legislation to do that.
Cherilyn Mackrory
Q
Dr Wright: That is a really important point and I am 100% certain that members are receptive to that. It is just that they have felt at the moment that they have not had the power to say the things they have wanted to say. Of course, members who have approached members of the public in a field with a dog off a lead have sometimes been victims of verbal abuse, and many of my members have said they are just not prepared to engage with dog walkers under those circumstances, because they have not been able to say, “You must do this.” I feel that is what we have been missing before.
The Chair
If there are no further questions, on behalf of us all, I thank Dr Hazel Wright, senior policy officer at the Farmers Union of Wales.